Summary: Mrs and Mr X complained the Council failed to ensure suitable education and special educational needs support was in place for their child D. There was fault by the Council which caused D to miss SEN provision. It also caused avoidable distress for D, and avoidable distress, time, and trouble for Mrs and Mr X. The Council agreed to apologise and pay a financial remedy. It will also review relevant processes and review its complaint handling in this case.

The complaint

1. Mrs X and Mr X complain the Council failed to ensure suitable education and special educational needs (SEN) support was in place for their child, D, from November 2022 to January 2024. They say:
• D stopped attending their mainstream school in November 2022 and the Council accepted it was not suitable for them. However, it then delayed for over a year in reviewing and updating D’s Education, Health, and Care (EHC) Plan, and finding a suitable special school setting;
• the Council failed to ensure D received suitable alternative education, or the SEN support outlined in their EHC Plan, while they were out of school; and
• the Council provided a poor and inaccurate response to their complaint about these issues and did not properly accept it was at fault.
2. Because of this, Mrs and Mr X say:
• D experienced distress. They missed education and SEN support, became isolated, and lost confidence;
• they experienced distress which impacted their mental health. They also spent time and trouble in arranging educational activities for D themselves; and
• they experienced financial loss. They had to fund added educational provision themselves to supplement the alternative education arranged by D’s school, as it was not equivalent to a full-time education. They instructed a solicitor to correspond with the Council so spent money on legal fees. Also, one parent had to be at home with D while they were out of school so could not work.
3. Mrs and Mr X want the Council to apologise, and improve its services to ensure it complies with the law in reviewing EHC Plans and ensuring a suitable alternative education for children out of school.

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The Ombudsman’s role and powers

4. 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)
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 complaints about what happens in schools unless it relates to special educational needs, when a school is acting on behalf of a council to secure educational provision, as set out in Section F of an Education, Health and Care Plan.
7. 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.
8. 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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How I considered this complaint

9. I considered:
• information provided by Mrs and Mr X and discussed the complaint with them;
• documentation from the Council;
• relevant law and guidance; and
• the Ombudsman’s Guidance on Jurisdiction and Guidance on Remedies.
10. Mrs and Mr X, and the Council, had opportunity to comment on my draft decision. I considered any comments received before making a final decision.
11. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

Legislation and guidance

Education, Health, and Care (EHC) Plans

12. A child or young person with special educational needs (SEN) may have an Education, Health, and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them.
13. The EHC Plan is set out in sections which include: 

• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 

14. 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)  
15. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for producing and reviewing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.

Naming a school in an EHC Plan

16. The child’s parent or the young person has the right to request a particular school, college, or other institution, of the following types, be named in their EHC Plan:
• maintained school;
• any form of academy or free school (mainstream or special);
• non-maintained special school; and
• independent school or independent specialist college (where they have been approved for this purpose by the Secretary of State and published in a list available to all parents and young people, referred to as a section 41 list).
17. If a child’s parent or a young person makes a request for a particular school in these groups, the council must comply with that preference and name the school in the EHC Plan unless:
• it would be unsuitable for the age, ability, aptitude or SEN of the child or young person; or
• the attendance of the child or young person there would be incompatible with the efficient education of others, or the efficient use of resources.
18. It is insufficient to say the requested school is ‘full’.
19. Where a school is consulted to be named in the EHC Plan, it should respond within 15 days. When a council names a school or other institution in a child’s final EHC plan, the school/ institution has a duty to admit the child.

EHC Plan reviews

20. 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.
21. 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) 
22. 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.
23. The Council must then issue any final amended EHC Plan within eight weeks of the notice of proposed amendments. (R(L, M and P) v Devon County Council [2022]). Therefore, it must issue a final Plan within twelve weeks of the review meeting.

Alternative education for a child out of school

24. 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.
25. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
26. 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)
27. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they 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’)

EHC Plan appeal rights

30. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the SEND Tribunal in this decision statement.
31. There is a right of appeal to the SEND Tribunal against:
• a decision not to amend an EHC Plan following a review;
• once a Council issues a final EHC Plan, the description of the child’s SEN, the SEN provision specified, the school or placement specified, or the fact that no school or other placement is specified.
32. 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)
33. This means if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or a consequence of, a parent or young person’s disagreement about the SEN provision or educational placement in the EHC Plan, we cannot investigate a lack of SEN provision, or alternative educational provision.
34. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example: 
• delays in the process before an appeal right started;
• where there is support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to the appeal; and
• alternative education when the reason the child or young person is not attending education is, in our view, not connected to or a consequence of a matter that was, or could have been, part of an appeal to the Tribunal.  

What happened

35. In September 2022 D started year 8 in a mainstream secondary school. They had an EHC Plan in place.
36. In November 2022, D stopped attending school. Mrs and Mr X said the school could not meet D’s special educational needs which had affected their mental health. The following week, the school held an EHC Plan annual review meeting, which the Council attended. At this meeting it was agreed:
• the Council would seek a special school placement for D. This included consulting Mrs and Mr X’s preference, School A, an independent special school which had section 41 approval by the Secretary of State, as described at paragraph 16;
• the school would arrange alternative education for D while they were out of school until the Council found a special school placement; and
• the school and parents would work with an Educational Psychologist (EP) from the Council to review D’s EHC Plan and decide if the provision was still suitable. A meeting was arranged for this in three weeks.
37. In December 2022, three weeks after the review meeting, the EP met with the school and parents. The same day, the Council issued a decision to maintain D’s EHC Plan with no changes. This included continuing to name D’s mainstream school, which they had stopped attending, in Section I. However, the Council told the family it was continuing to look for a special school placement and would amend Section I of the Plan as soon as it had done this. It also said it could update the Plan to reflect advice from the EP, once it received their report.
38. In January 2023, the Council received the EP report. It did not consider this or update the EHC Plan.
39. In July 2023, at the end of year 8:
• D was still out of school. They had received ten hours a week of alternative education, arranged by their mainstream school, since January 2023;
• the EHC Plan had remained the same and the Council had not found a special school placement. School A assessed D and decided it could not meet their needs and their attendance would be incompatible with the efficient education of others, or the efficient use of resources; and
• Mrs and Mr X complained to the Council.
40. In September 2023:
• D started year 9 and was still out of school with no special school placement;
• their alternative education increased to fifteen hours a week; and
• the Council responded to Mrs and Mr X’s complaint at Stage 2 of its complaints procedure. It told us it skipped Stage 1 due to the complexity of the case.
41. In October 2023, D’s mainstream school held an EHC Plan annual review meeting. The Council decided it should amend the Plan and issued a final amended Plan in December 2023, within twelve weeks of the review meeting. This named D’s mainstream school up to the end of December 2023, with a new special school placement, School B, starting from January 2024. Mrs and Mr X said this Plan also included the recommendations from the January 2023 EP report.
42. Mrs and Mr X escalated their complaint, and the Council sent its final response in February 2024. We began our investigation shortly after.

My findings

The SEND Tribunal

43. Mrs and Mr X had a right of appeal to the SEND Tribunal if they disagreed with the December 2022 decision to keep the EHC Plan the same. We cannot normally investigate matters that have a right of appeal to the SEND Tribunal, as set out in paragraph 5. However, when the Council issued its decision not to amend the Plan, it told Mrs and Mr X it was looking for a special school placement and would update the Plan with the EP report. They had a legitimate expectation a suitable Plan would follow shortly after. Therefore, I decided it was not reasonable to expect them to have appealed to the SEND Tribunal. This means I investigated:
• the Council’s actions in updating the Plan from late 2022 to late 2023; and
• any lack of educational provision and SEN provision during this same period.

Review of EHC Plan

44. We can look at delays in the EHC Plan review process. We expect councils to follow statutory timescales set out in the Regulations and Code. We are likely to find fault where there are significant breaches of those timescales.
45. Following the November 2022 review meeting, the Council issued its decision not to amend the Plan, within the required four-week timescale. However, it told Mrs and Mr X it would soon be amending the Plan. It continued to name D’s school in the Plan even though it had agreed at the review meeting the school was not suitable for them, so the Plan was not fit for purpose. The inconsistencies between the Council’s actions and what it told Mrs and Mr X were fault. The Council ensured it technically met statutory timescales, but created a situation for the family which was confusing, and frustrated their right to appeal to the SEND Tribunal. The Council should remedy the injustice caused.
46. The Council then significantly delayed in finding a school placement and updating the EHC Plan.
47. The Council agreed at the November 2022 review meeting it should seek EP advice to decide if the SEN provision in the EHC Plan was still suitable. It then received the EP report in January 2023. However, it did not consider whether it should update D’s EHC Plan based on this until after Mrs and Mr X complained, so it did not update the Plan until December 2023. This was fault.
48. The Council consulted with several special schools on the same day as the November 2022 review meeting, to see if they were suitable to be named in the Plan. This included School A, Mrs and Mr X’s preference. School A responded to the consultation late, after two months. It said it was at capacity so could not offer D a place but could put them on the waiting list for an assessment. I am not satisfied the Council properly considered whether it should name School A in the Plan in line with Mrs and Mr X’s preference, as described at paragraphs 16 to 19. It accepted the school’s position that it was too full to accept D, which is not a valid reason for refusal under the legislation. It did not properly interrogate whether the conditions were met which meant it should not name the school. This was fault.
49. Eight months later, School A assessed D and said it would not offer them a place. The Council had not been proactive in ensuring it received responses to the various school consults it had sent. Schools should respond within 15 days. Many of the schools consulted did not respond. The Council did not chase this at all while D was out of school for eight months, until after School A said it could not meet needs and Mrs and Mr X complained. This was fault.
50. After the complaint, D’s school carried out another EHC Plan review meeting in October 2023. The Council issued its decision to amend the Plan within the required four-week timescale. However, the law says details of any proposed amendments should also be sent within four weeks of the meeting. The Council failed to do this, which was fault.
51. The Council’s delays, and failure to follow the proper school consultation process, caused uncertainty for Mrs X, Mr X, and D, about what would happen with the EHC Plan, which caused them distress. Also, on the balance of probabilities, it is likely the Council missed opportunities to find a suitable placement for D earlier.

Alternative education while out of school

52. At the November 2022 review meeting, the Council knew D was going to be out of school for 15 days or more, with no education in place. At this meeting it agreed D’s mainstream school should arrange alternative education while the Council sought a special school placement. We cannot investigate alternative provision arranged by the school, as the law prevents us from investigating internal school matters. However, the section 19 duty to provide alternative education is the Council’s duty. Therefore, we can consider whether the Council had proper oversight of this, and assured itself suitable education was in place when made aware of any issues.
53. After the review meeting, D did not have education in place for the remaining four weeks of term, while the school found an alternative education provider and carried out safeguarding checks. Mrs and Mr X chased the Council during this time. The package was then in place from the start of the January 2023 term. The duty to provide alternative education is not immediate, councils must ensure this is in place as soon as possible and act without delay. Four weeks to arrange the package was reasonable. I do not find fault in the Council’s actions.
54. From January 2023, D received ten hours a week of alternative education arranged by their school. The school produced, and shared with the Council, a detailed proposal for the provision, which showed consideration of D’s educational outcomes and SEN. Although ten hours per week is less than full time, this was one-to-one provision, in which case the law says hours may be fewer as the provision is more concentrated. In June 2023, in the final term of year 8, Mrs and Mr X told the Council they thought D should receive more hours. The Council therefore provided extra funding to D’s school to increase the package to fifteen hours a week from September 2023, the start of the following term. Again, this was a reasonable timescale to make the necessary arrangements. I do not find fault in the Council’s actions.

Delivery of EHC Plan

55. D’s EHC Plan sets out, in section F, the special educational provision they must receive. The Council had a duty to ensure this provision was in place under section 42 of the Children and Families Act.
56. 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 it 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 provision is not in place at any time. 

57. From November 2022 the Council was aware D was out of school and would not be returning to their school placement. It therefore should have taken steps to ensure their EHC Plan provision was in place, or considered how far it was possible to do so given D’s circumstances, while not attending school. D’s school sent the Council a proposal for the alternative provision. There was no evidence the Council considered what provision from the Plan could practicably be delivered outside a school setting, or whether the alternative provision proposal aligned with this. This was fault.
58. The Council should remedy any injustice caused by the three terms of SEN provision D missed. I found the Council could have included the updated EP advice in the Plan around a year earlier. Therefore, the Council should remedy missed SEN provision based on that outlined in the December 2023 EHC Plan. This included:
• suitably trained staff to explore D’s speech and language skills, either 1:1 or in small groups;
• an emotional literacy support assistant to teach D skills for healthy and positive relationships, either 1:1 or in small groups. Also 30 minutes a week to practice these skills, both 1:1 with an adult and in small peer groups;
• 30 minutes a week of support to learn and practise social skills, both 1:1 with an adult and in small peer groups;
• 30 minutes a week of support with recognising and communicating emotions, either 1:1 or in small groups; and
• 30 minutes a week of support with building resilience and looking after mental wellbeing, either 1:1 or in small groups.
59. As set out in our guidance on remedies, where we find fault has resulted in loss of educational provision (for example where a child is out of school), we usually recommend a payment of £900 to £2,400 a term to recognise the impact of that loss. Where there has been a loss of SEN support, the level of financial remedy is likely to be lower than that for loss of educational provision. We consider the level of SEN provision missed and the impact of this on the child.
60. In deciding a suitable financial payment to recognise the impact of D’s missed SEN provision, I considered the following.
• D was in years 8 and 9 of secondary school. As set out in our guidance on remedies, we do not consider this to be one of the most significant periods in a child’s school career, as we would say for the first year of secondary school, or a public exam year.
• Although the alternative education included support with emotional literacy and mental wellbeing, this was not in line with section F of the EHC Plan and did not include any interaction with peers. However, the provision missed was not significant hours of direct therapies or interventions, such as Occupational Therapy or Speech and Language Therapy.
61. Based on this, I consider the Council should pay a remedy of £500 for each term of missed SEN provision. The Council should also provide a remedy for the distress caused to Mrs and Mr X by its failure to deliver D’s SEN support.

Complaint handling

62. I found fault with the Council’s September 2022 Stage 2 complaint response, as follows.
• The Council said it had not agreed D should have a special school placement, and its expectation was D’s mainstream school would explore all available options to reintegrate D. It said when School A decided in July 2023 it could not meet needs, it did not pursue this further because it confirmed the Council’s view D’s needs could be met in a mainstream setting. This did not accurately reflect the Council’s position about D's case, and what it had previously agreed with the family. There was no evidence there was ever any plan to reintegrate D into mainstream school. It is clear the Council agreed from the start alternative education was needed while it sought a special placement, not while D was reintegrated into their mainstream school. Indeed, the alternative provision package proposed by the school did not include any hours on site at the school, or any plan for reintegration.
• The Council also said it received the EP report in January 2023, midway through the EHC Plan annual review cycle, so it was correct it did not amend the Plan to include this. Again, this did not accurately represent what it told the family it would do at the November 2022 review meeting. It had said the purpose of seeking an EP report was with a view to updating the Plan. It received the report three weeks after the decision not to amend the Plan, which was still within the twelve-week timescale to amend the Plan following the review meeting. It could have waited for the report and updated the Plan, within statutory timescales.
63. I also found fault with the Council’s Stage 3 complaint response issued in February 2024, because:
• it was vague and unhelpful and provided no meaningful response to any of the points raised;
• actions the Council said it would take to improve its services were unclear; and
• at one point the Council used a different child’s name.
64. I found the Council’s response to the complaint to be confusing and unhelpful, and to misrepresent what had happened and what it had previously agreed with the family. This was fault which compounded Mrs and Mr X’s distress. The Council should remedy the injustice caused.

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Agreed action

65. Within one month of our final decision the Council will:
1. apologise for the faults identified and the impact of those faults on the family. Our guidance on remedies sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making its apology;
2. pay the family a total of £2,200 comprising of:
1. £1,500 to recognise the three terms of missed SEN provision;
2. £500 to recognise the avoidable distress, time, and trouble caused to Mrs and Mr X by the Council’s failings; and
3. £200 to recognise the avoidable distress to D.
66. Based on the faults identified, I would usually propose recommendations for the Council to ensure it follows the correct EHC Plan review process and does not allow cases to drift with no action. However, we have made several recent recommendations to the Council about similar fault. Since the issues in D’s case, the Council has evidenced steps taken to address the issues. This includes implementation of a new database, processes for tracking deadlines, and an action plan for how it will clear its backlog of EHC Plan reviews. Therefore, I will not make further recommendations about the same fault now.
67. Within three months of our final decision the Council will:
1. review its process for when a child with an EHC Plan is out of school, to ensure it meets its duty to secure the provision in the Plan as far as possible outside a school setting. It will decide whether it needs to make any administrative changes to its processes, or deliver training to staff, to ensure this is not missed in future, as it was in D’s case; and
2. review its Stage 2 and Stage 3 complaint responses in D’s case, and our findings of fault. It will decide what steps it should take to address the faults identified with staff who respond to SEN complaints, to ensure:
1. complaint responses, and improvement actions identified, are clear;
2. details such as complainant or child names are accurate; and
3. responses are open and accountable.
68. The Council will provide us with evidence it has complied with the above actions.

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Final decision

69. I have completed my investigation. There was fault by the Council which caused D to miss SEN provision. It also caused avoidable distress for D, and avoidable distress, time, and trouble for Mrs and Mr X. The Council agreed to our recommendations to remedy this injustice, review relevant processes, and review its complaint handling in this case.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman