Summary: Mrs X complained the Council failed to provide her child with alternative education provision despite being aware he could not attend school full-time and delayed issuing a final Education, Health and Care plan following an emergency review. Mrs X says her son did not receive suitable full-time education and missed provision set out in his final plan. We found fault by the Council but consider the agreed action of an apology, provision of any missed speech and language therapy and a symbolic payment provides a suitable remedy.

The complaint

1. The complainant, Mrs X, complains the Council failed to provide her child (B) with alternative education provision despite being aware he could not attend school full-time from the date it issued an Education, Health and Care plan in 2022. Mrs X also complains the Council delayed issuing a final Education, Health and Care plan following an emergency review in May 2023.
2. Mrs X says because of the Council’s fault B did not receive suitable full-time education and missed provision set out in his final plan.

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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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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.
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)
9. 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 have and have not investigated

10. I have investigated Mrs X’s complaints about the EHCP process following the May 2023 review and the provision of alternative education.
11. For the reasons set out at paragraph five and six above and paragraphs 22 to 25 below I have not investigated any decisions which included a right of appeal to the SEND Tribunal or any matters which were a consequence of a decision which had a right of appeal.
12. I have also not investigated a new issue Mrs X raised about the provision to her son following his removal from school after an incident at Easter. Mrs X would need to make a complaint about this to the Council in the first instance and allow it an opportunity to respond before making a new complaint to the Ombudsman if she remained unhappy with the outcome.

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How I considered this complaint

13. I read the papers provided by Mrs X and discussed the complaint with her. I have also considered information from the Council. I have explained my draft decision to Mrs X and the Council and provided an opportunity for comment.

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What I found

Background information

Education, Health and Care (EHC) plans

14. A child or young person with special educational needs may have an EHC plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.
15. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following:
• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks.
• The process of assessing needs and developing EHC plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable.
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC plan or refuse to issue a plan within 16 weeks.
• If the council goes on to issue an EHC plan, the whole process from the point when an assessment is requested until the final EHC plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).

• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.

Maintaining the EHC Plan

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. 

Reassessments of EHC Plans

18. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
19. The council can refuse a request for a reassessment if less than six months have passed since a previous EHC needs assessment. It can also refuse a request if it does not think it is necessary, for example because it does not feel a child or young person’s needs have changed significantly.
20. The council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request. If the decision is not to reassess, the council must also provide information about the right to appeal that decision to the tribunal.
21. If the council agrees to an EHC needs reassessment, it has 14 weeks to issue the final EHC Plan from the date it agreed to reassess to the date it issues the final amended EHC Plan.

Appeal rights and the Ombudsman’s jurisdiction

22. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
23. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
24. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
25. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

Alternative education

26. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
27. 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)
28. 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)
29. 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.
30. 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))
31. 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”.
32. 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”.
33. 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))
34. 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)
35. 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’)
36. 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])

Part-time timetables

37. The DfE guidance (Working together to improve school attendance) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 
38. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, “Out of school…out of mind?”, says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.

What happened

39. The following is a summary of key events. It does not include everything that happened.
40. Mrs X received a final EHCP for B in November 2022. This named B’s placement as his current mainstream school. Much of the provision focused on classroom strategies and interventions to manage behaviour. Mrs X did not appeal the EHCP.
41. An Interim Annual Review meeting was held on 24 May 2023. The summary from this meeting says it was an interim emergency review as B had been finding the school day increasingly overwhelming and was currently on a reduced timetable with withdrawal lessons for a number of lessons with a high level of 1:1. This noted Speech and Language Therapy (SALT) recommendations for a weekly one hour session. It was also noted that B did not want 1:1 support in the classroom and would receive 1:1 support in withdrawal lessons for an hour seven times a week and a reduced timetable to support school inclusion. The school day was to finish at 1.30pm.
42. The Council accepts it was made aware at the May 2023 EHCP Annual Review meeting that B may be away from school for 15 days or more because of his health needs, either consecutively or over the course of the school year.
43. Mrs X complained to the Council on 14 September as there had not been an outcome following the May review and the additional provision highlighted was not being provided. The Council sent an acknowledgment and suggested a response would be provided by 3 October.
44. Mrs X contacted the Council on 4 October as she had not received a response. The Council apologised for the delay and said a response would be provided by 16 October. The Council provided a response on 26 October and apologised for the delay.
45. The Council sent an Amendment Notice with a proposed draft EHC Plan to Mrs X on 12 October 2023. The draft included the SALT provision but made no reference to a reduced timetable.
46. Mrs X remained unhappy with the Council’s response to her complaint and asked for it to be escalated to the second stage of its procedure on 26 October. Mrs X highlighted the delay in completing the EHCP process and delay in providing funding for the school meant B had missed out on additional provision from the start of the new term in September 2023.
47. A request was made to the Council’s Governance Board for interim tuition and an increase in funding in early November 2023. It was agreed to increase funding from Targeted 1 (the lowest band) to Enhanced 2 (the highest band, other than bespoke levels of funding which exceed the Council’s banding framework). The panel did not agree to interim tuition with the rationale being the increase in funding adequately resourced the school to implement appropriate alternative provision to reintegrate B into the setting.
48. The Council issued the final EHCP to Mrs X on 27 November 2023. The accompanying letter sets out the parental right to appeal to the Tribunal. This named the same mainstream school as the education placement. The final EHCP also included the same SALT provision as set out in the earlier draft and again made no reference to the use of a reduced timetable. The Council provided a copy of the final EHCP to the school the following day and confirmed the funding had been completed and approved.
49. The Council provided a response to Mrs X at the second stage of its complaint procedure on 11 December. In the Council’s response to Mrs X’s complaint, it accepted the EHCP process had taken too long and there had also been poor communication. The Council provided an apology. The Council also recommended the service area contact Mrs X within one month to provide a symbolic payment to both Mrs X and B for the distress, frustration and uncertainty caused by the delays.
50. The Council wrote to Mrs X following the outcome of her complaint on 15 January 2024. The Council proposed a payment of £300 to B for his distress and £300 to Mrs X for her frustration and uncertainty caused by the delays in issuing B’s final EHCP. The Council has confirmed to the Ombudsman this payment has been made.
51. The Council in response to my enquiries offered a further payment of £1,000 in recognition of B’s missed education provision. The Council acknowledged there had been a delay in the school receiving funding.

My findings

EHCP review process

52. The Council has recognised there was a delay in the completion of the Annual Review for B following the Annual Review meeting held on 24 May 2023. The Council did not respond until 12 October 2023. The Council has confirmed it is aware of the requirement to write to parents with its decision within four weeks of the Annual Review meeting date and accepts it did not meet this requirement which frustrated Mrs X’s right of appeal.
53. This is fault which will have caused Mrs X and B avoidable frustration and uncertainty. I consider the Council’s payments of £300 to both Mrs X and B are in line with the Ombudsman’s Guidance on Remedies and we would not seek more for this aspect of their injustice.
54. However, I also note the delay in completing the Annual Review meant a delay in the SALT provision being provided. Based on the timescales, it is reasonable to consider this should have been in place for B at the start of the September 2023 term. The Council should ensure this provision was/is secured, identify the amount of missed provision and make arrangements for additional SALT to make up any shortfall identified.
55. The Council has provided its reasons for the delay which relate to difficulties with staffing capacity and retention at the time. The Council has since engaged the services of agency SEND Case Officers to fill vacancies and have launched an Annual Review Recovery team to combat its poor timeliness in the future. The Ombudsman would welcome this action.

Alternative education

56. The Council has confirmed the specified provision in Section F of B’s EHCP was funded appropriately from the time it was issued in November 2022 to 21 May 2023.
57. The Council says it was made aware at the 24 May 2023 EHCP Annual Review meeting that B may be away from school for 15 days or more because of his health needs, either consecutively or over the course of the school year. The Council accepts that, once it was notified, it did not act appropriately and there were delays in considering whether its Section 19 duties applied. The Council has accepted that although agreement was made to provide the school with the financial resources required to make provision, it did not ensure the provision of full-time suitable education was delivered to B. This is fault. I also note there was a delay in providing the additional funding.
58. This fault caused Mrs X and B an injustice. I recognise Mrs X’s strongly held view the provision in place before May 2023 was inadequate. However, there is no evidence the Council was aware of the reduced timetable before this date. In any event, we cannot know on balance what education arrangements the Council would have decided were suitable during this period. The Council may, for example, have decided the support provided was sufficient at that time and not made any changes.
59. There remains a degree of uncertainty around what education provision B would have been able to engage with and access during the period following the May 2023 Review. However, there is no evidence the Council was exploring this with the school to ensure any reduced timetable was a temporary measure with a clear plan in place for B to transition back to a full timetable. On balance, I consider B will have missed the opportunity of some education provision during this period. The injustice caused to Mrs X is distress and uncertainty about whether the Council could have done more to improve B’s educational arrangements in this period.
60. The Council’s proposed symbolic payment of £1,000 is a suitable way to recognise this injustice.

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Agreed action

61. The Council has agreed to take the following action within one month of my final decision:
• write to apologise to Mrs X for not considering if its section 19 duties applied from May 2023;
• make a symbolic payment of £1,000 to Mrs X for her distress and uncertainty about whether the Council could have done more to improve B’s educational arrangements following the May 2023 Review; and
• ensure the SALT provision is secured, identify the amount of missed provision and make arrangements for additional SALT to address any shortfall caused by the delay in the Annual Review process.
62. We note the Council has already provided Section 19 training to its staff, and there have been recent service improvements recommended by the Ombudsman for reminding staff of the statutory timescales for EHC Plan’s and the importance of timescales set out in the complaints process. I have therefore not made any further recommendations as we will monitor the impact of these changes through our complaints.
63. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
64. The Council should provide us with evidence it has complied with the above actions.

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Final decision

65. I have completed my investigation as there was fault by the Council but I consider the agreed action above provides a suitable remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman