Summary: Mrs X complained the Council did not review her child’s education, health and care plan within the statutory timescales, failed to provide the provision in the plan and failed to provide alternative education when her child was out of school. We found fault by the Council causing Mrs X and her child an injustice. The Council agreed to apologise and make a payment in recognition of the injustice caused. We could not investigate all parts of Mrs X’s complaint. This is because they are outside of the Ombudsman’s jurisdiction.

The complaint

1. Mrs X complained about the Council’s handling of her child, Y’s, special educational needs during the period September 2021-July 2023. She complains:
• the annual review of Y’s education, health and care (EHC) plan took longer than it should have;
• the Council did not provide the provision set out in Y’s EHC plan; and
• the Council did not provide alternative educational provision when Y could no longer attend her school.
2. Mrs X says Y has missed education and provision in her EHC plan which has been detrimental to her education and mental wellbeing. It has also caused her and Y avoidable distress, frustration and uncertainty.

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The Ombudsman’s role and powers

3. 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. (Local Government Act 1974, sections 26B and 34D, as amended)
4. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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.
6. 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)
7. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside of its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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. We cannot investigate late complaints unless there are good reasons to do so. A late complaint is when someone takes longer than 12 months to complain to us about something the Council has done. This applies to Mrs X’s concerns between September 2021-September 2022. I have decided to exercise discretion and investigate matters from September 2021 because Mrs X has been actively pursuing these matters with the Council throughout this period and so I consider there are good reasons to investigate them now.
11. I have investigated Mrs X’s concerns about delay in the annual review of Y’s EHC plan.
12. I have also investigated the Council’s failure to provide Y with the provision set out in her EHC plan and its failure to provide alternative education between September 2021-April 2023.
13. I have not investigated the Council’s failure to provide Y with the provision in her EHC plan from April 2023. This is because the Council issued Mrs X with a final EHC plan in April 2023. This gave Mrs X appeal rights and she appealed to the SEND Tribunal and so I cannot investigate a lack of the provision from the date her appeal rights arose. This applies even if the complainant later withdraws their appeal.
14. I consider the reasons Y was not attending her school is linked to the reasons for Mrs X’s appeal to the SEND Tribunal and so, I cannot investigate the lack of alternative provision from April 2023. This applies even if the complainant later withdraws their appeal.

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How I considered this complaint

15. As part of my investigation I have:
• Discussed the complaint with Mrs X and considered information she provided;
• Made enquiries of the Council and considered its response and supporting information;
• Considered our guidance on remedies and the relevant legislation and guidance and;
• Set out my initial thoughts on the complaint in a draft decision statement and I considered comments from Mrs X.

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What I found

16. 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 council can do this.

17. 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 

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 week of the date of the review meeting.

Maintaining an EHC plan

21. The council has a duty to make sure the child or young person receives the special educational provisions 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)

22. 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.

Alternative 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. [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.
24. 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)
25. 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.

What happened

26. The following chronology sets out the key events. It does not detail everything that happened.
27. Mrs X’s child, Y, has an education, health and care (EHC) plan. It named School 1 as her placement.
28. In September 2021 the placement named in Y’s plan broke down and she could no longer attend.
29. In October the Council arranged for tuition for Y totalling four hours per week. Meanwhile the Council was looking for an alternative placement for Y.
30. In November Mrs X told the Council that Y’s mental health had declined, and she could not engage with online tuition.
31. In December a placement for Y was found and agreed.
32. In January 2022 Y was issued with a new EHC plan. It named School 2 as her placement.
33. In March an annual review meeting of Y’s EHC plan was held. It was agreed that:
• Assessments from an Educational Psychologist (EP), Speech and Language Therapist (SALT), Occupational Therapist (OT) and from the Children Adolescent Mental Service (CAMHS) were required. Mrs X agreed to a small delay in issuing the draft EHC plan to allow for the assessments.
• Y’s placement at School 2 was breaking down and new placement should be found.
34. Later in March an emergency review was called and School 2 said it could no longer meet Y’s needs. The Council began to consult with alternative placements.
35. In May the Council secured additional finding for Y so that she could receive 1:1 support to help her return to School 2 while a new placement was found. However, the placement broke down again.
36. In July Y returned to School 2 as it felt it could meet her needs following changes in the school. However, the placement broke down again and School 2 asked her not to attend.
37. In August the Council received the reports from the EP, SALT and OT assessments.
38. In September the new academic year began. Y returned to School 2 with her existing EHC plan.
39. In October the Council issued a notice to amend Y’s EHC plan.
40. In November School 2 asked Y to stay at home as it could not meet her needs.
41. In December School 2 called an emergency placement review which concluded the placement was not suitable for Y’s needs.
42. The Council continued consulting educational settings to find a new placement for Y.
43. Later that month the Council sent Mrs X a draft EHC plan for Y.
44. In February 2023 the Council received updated information from CAMHS for Y’s EHC plan.
45. In March the Council found a new placement for Y. However, Mrs X raised concerns about its suitability, and it was agreed to not pursue the offer.
46. In April the Council issued Y’s final EHC plan. It named School 2 as Y’s placement.
47. In May a meeting was held with Mrs X and the Council. It decided that an Education Other Than at School (EOTAS) package should be agreed for Y.
48. Also, in May Mrs X submitted a late appeal to the SEND Tribunal about the placement named in Y’s EHC plan. Mrs X later withdrew the appeal.
49. In July a EOTAS packed was agreed. A placement was also agreed with a provider who could meet Y’s social care needs. The placement later broke down.
50. In August Y left the roll of School 2.

Mrs X’s complaints

51. Mrs X complained to the Council at both stages of its complaints process. She complained the Council failed to:
• meet statutory timescales for reviewing Y’s EHC plan; and
• to provide Y with alternative education or the provision set out in her EHC plan.
52. The Council’s responses to Mrs X’s complaint said:
• In March 2022 Mrs X agreed to a delay in finalising Y’s ECH plan to allow for assessments to be completed. However, it accepted that it did not comply with the statutory timescales, and this delayed Mrs X’s right to appeal.
• Provision of Y’s SALT, OT and adult preparation needs were discussed with School 2 which said it could meet these needs. School 2 put this provision in place however Y was not able to access them.
• It could not find any evidence that School 2 advised it could no longer meet Y’s needs. The Council altered its position in its stage 2 response and agreed it was aware. It apologised for its earlier inaccurate response.
• School 2 made an offer of horse-riding lessons for Y and that she is on the waiting list for horse riding lessons through the Council’s Children with Disabilities team.
53. Unhappy with the Council’s response Mrs X complained to the Ombudsman.
54. In response to our enquiries the Council said
• Between October 2021 and November 2021, it provided Y with fours of tuition with two tutors for maths and English. Mrs X cancelled the tuition because of Y’s mental health.
• Between March 2022 and July 2022, it secured additional funding for 1:1 support to help Y access her placement at School 2 while it sought a new placement for her.
• Between November 2022 and July 2023 Y had a place at School 2 and was on the roll. It continued to look for a new placement for Y however this was challenging because Y had already attended several providers and 1:1 tuition was not suitable for her. EOTAS was agreed for Y in July 2023.
• Mrs X did not raise concerns about SALT and OT provision during the March 2022 annual review meeting. Furthermore, the Council discussed this provision with School 2 which said it had arranged for Y to have this support, but she was unable to access it because of a lack of engagement.
• It accepted that it did not meet the statutory timescales for reviewing Y’s EHC plan. It has refreshed its SEND strategy to improve the timeliness of its EHC reviews.

Finding

Review of Y’s EHC plan

55. The Council held the annual review meeting for Y’s EHC plan on 23 March 2022. It needed to notify Mrs X of its decision-whether to maintain, cease or amend the ECH plan- within four weeks of the meeting. It did not send the letter until 20 October 2022, a delay of around six and half months. I find this caused Mrs X an injustice because it caused her frustration and uncertainty.
56. The Council did not issue Y with a final amended EHC plan until 4 April 2023. The final plan should have been sent within eight weeks of the notice to amend the plan. The Council took an additional 16 weeks to do so. Again, I find this caused Mrs X an injustice because it caused her frustration, uncertainty and delayed her appeal rights.
57. The delay also meant that Y did not have the opportunity to access the provision set out in the plan while she waited for it be finalised. The provision set out in the plan may have helped prevent Y’s placement at School 2 from breaking down and so I consider this causes further uncertainty, which is an injustice.
58. I note that it was agreed that assessments were required for Y before her EHC plan was amended. However, this does not account for the extent of the delay I have found.

Alternative provision

59. Mrs X complains the Council has failed to provide the provision set out in Y’s EHC plan. I can only consider the period between September 2021 and April 2023, as outlined above.
60. During this period Y received only intermittent education. She was without any provision for much of this time. The Council was aware throughout this period that Y was not receiving an education as it had participated in emergency review meetings as School 2 said it could no longer meet her needs. It was also seeking a new alternative placement for Y.
61. The Council has provided details of its efforts to find Y an alternative placement. I acknowledge Y’s case is complex and this made it difficult to find her a new placement. I accept the inability to find Y an alternative placement was largely outside the Council’s control. I consider this is service failure by the Council.
62. The Council did not provide Y with a suitable full time education package during this period. While I note she remained on roll at School 2 it was aware Y was not attending as the school could not meet her needs. It was also aware that interventions it had instigated such as providing increased funding for 1:1 support had not worked. It should therefore have made alternative provision available for Y until a new placement was found. It did not do so. This is fault which has caused Y and injustice as she was without suitable full-time education during this period.

Special education provision

63. The Council says Y was still on roll at School 2 and so it arranged for it provide SALT, OT and preparation for adulthood provision for Y. However, the Council was aware of the reports made by Mrs X, School 2 and the emergency review meetings, that this was not happening. The Council has a duty to secure the provision specified in Y’s EHC plan and it did not do so. This is fault which caused Y and injustice.

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Agreed action

64. Within one month of my final decision the Council will:
• Apologise to Mrs X and Y for the distress and lack of education caused by the fault I have found; and
• Pay Mrs X £8000, made up of:

1. £7500 for the benefit of Y’s education. This payment is in recognition of the education Y missed out on between September 2021 and April 2023. The payment has been worked out £1500 per term during this period.
2. £300 to recognise the frustration, distress and uncertainty caused by the delays in issuing Y’s EHC plan.
3. £200 to recognise the frustration caused to Mrs X in having to pursue this matter.

65. In arriving at the recommended payment, I have had regard to:
• Our guidance on remedies which suggests a financial remedy of between £900 to £2400 per term to acknowledge the impact of that loss;
• that Y received four hours of 1:1 tuition per week between 18 October 2021-24 November 2021 and that Y attended School 2 intermittently between January 2022 and December 2022.
• the impact on Y of missing education and provision in her EHC plan; and
• the remedy must cover both her missed education and the provision in her EHC plan.
66. The Council should provide us with evidence it has complied with the above actions.

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Final decision

67. I found fault by the Council which caused injustice to Mrs X and Y. The Council has agreed to my recommendations to remedy this, and I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman