Summary: Mrs X complained the Council failed to ensure her son, F received a suitable education or the specialist provision set out in his Education, Health and Care (EHC) Plan since it was issued in March 2023. The Council failed to have sufficient oversight of F’s placement at an alternative provision between March 2023 and January 2024. It also delayed issuing an amended EHC Plan following an annual review. The Council agreed to pay Mrs X £900 to acknowledge the distress and uncertainty this caused.

The complaint

1. Mrs X complained the Council failed to ensure her son, F, received a suitable education or the specialist provision in his Education, Health and Care (EHC) Plan since it was issued in March 2023.
2. Mrs X said F does not have a named placement to attend and as a result has had no education since March 2023. This has caused distress and uncertainty.

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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 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)
5. 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.
6. 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)
7. 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

8. The Council issued F’s EHC Plan in March 2023 naming a ‘mainstream school’. Although Mrs X had a right of appeal to the SEND tribunal at this point, the records show the Council had agreed to consult with specialist placements. This being the case, it was not reasonable for Mrs X to appeal as she believed the Council was taking action. I have therefore decided to investigate F’s loss of education between March 2023 and April 2024 at which point the Council issued another amended EHC Plan for F which had a new right of appeal to the SEND tribunal.

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How I considered this complaint

9. I spoke to Mrs X about her complaint and considered information she provided.
10. I considered the Council’s response to my enquiry letter.
11. Mrs X and the Council had the opportunity to comment on the draft decision. I considered comments before making a final decision.

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What I found

Relevant law and guidance

EHC Plans

12. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.
13. The EHC Plan is set out in sections which include
• Section B: Special educational needs.
• 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.

Annual reviews

15. 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.
16. 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).
17. Where the council proposes to amend an EHC Plan, the Courts have found councils must both notify the parent of the decision to amend, and what the proposed changes are within 5 weeks of the annual review meeting. The council must then issue any final amended plan within 8 weeks of the amendment notice. This means a final plan must be issued within 12 weeks of the review meeting).

SEND tribunal

18. 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.
19. There is a right of appeal to the Tribunal against the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified.

Section 19 duty

20. 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 provision.
21. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
22. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• consider enforcing attendance where a child has a suitable school place available, and where there is no medical or other reason that prevents them attending;
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases;
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary; and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

23. 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

24. Mrs X has a son, F who in 2023 was of secondary school age. F has special educational needs around his social, emotional and mental health. F attended a mainstream school prior to 2023 however he was permanently excluded in June 2022. Since then F has been on roll at School B, which is an alternative provision school for pupils who are not able to access mainstream provision due to exclusion or medical/health needs. However, School B was a 45 minute each way journey from F’s home and he struggled to attend.
25. School B submitted a Section 19 referral to the Council in February 2023 outlining that F was not attending. The referral also shows F had not engaged in other strategies and alternative provisions including an online provision. The referral explained F did not feel comfortable with people he did not know either in person or online. Staff from School B had visited F to try and build relationships with him but this had also failed. The Council’s section 19 panel declined the referral due to insufficient medical evidence.
26. In March 2023, following a needs assessment the Council issued F with an EHC Plan. The Plan outlined the specialist provision F needed in section F which included:
• A personalised curriculum
• Access to individual and small group learning
• Social skills learning
• Mentoring support
• Regular contact with peers to work on social and language skills

The Council named ‘mainstream school’ in section I of the EHC Plan.

27. Mrs X did not appeal the EHC Plan because she believed the Council was actively consulting for a specialist placement for F. Case notes show this to be the case and the Council consulted with various placements during 2023 without success.
28. F remained on roll at School B throughout 2023 and into 2024. School B sent further section 19 referrals in June and September 2023 both of which the Council rejected due to insufficient medical evidence. It also noted that various options had been explored with F which had not worked. Mrs X said F therefore remained without any education.
29. Mrs X complained to the Council in October 2023 that F was not receiving any education and was unable to access School B as it could not meet his needs.
30. The Council sent its final complaint response to Mrs X in November 2023. It said F was on roll at School B which he had access to attend. It said School B had attempted to engage F in a number of ways however all of these failed. It apologised for the delay in securing a long term placement for F since it issued the Plan in March 2023. It said it continued to be aware the F was unable to access School B due to the location and not being able to engage in online learning.
31. An annual review of F’s EHC Plan was held in December 2023. Following this, the Council issued an amended EHC Plan at the end of April 2024, again naming ‘mainstream school’ as F’s placement.
32. Mrs X remained unhappy and complained to us. Mrs X said she wants the Council to put in place an EOTAS (education other than at school) package to deliver the provision set out in his Plan.

The Council’s response to us

33. The Council said F has been on roll at School B since his permanent exclusion but has refused to engage in all it has tried. The Council said it agreed a part time timetable with Mrs X of two hours per week in January 2023 which involves a member of staff providing some home education.

My findings

34. The Council issued F’s EHC Plan in March 2023 naming a ‘mainstream school’. It has said F was on roll at School B, however, that is an alternative provision and not a mainstream school. So, F did not have an appropriate named placement to attend.
35. The Council was aware prior to it issuing the EHC Plan that F was not engaging with School B. It was then additionally made aware following a section 19 referral in May 2023 that School B was not meeting F’s needs, provision in his Plan was not being provided and that all attempted interventions had failed. This information was repeated in further referrals. F has an EHC Plan and therefore it is the Council’s duty to ensure that provision is in place and being delivered. I have not seen evidence of any oversight by the Council of F’s placement at School B. It has not carried out reviews, tried a reintegration plan or properly considered F’s individual circumstances. There is nothing to show the Council itself, between March 2023 and January 2024 met its duty to ensure F was receiving a suitable education or the specialist provision in line with his EHC Plan. That is not in line with relevant guidance and is fault.
36. However, as explained above, School B tried various interventions with F to engage him including different alternative provisions, one to one provision, online tuition and visiting him at home. These all failed as F was unable to engage. Therefore, on balance it is unlikely Council intervention would have meant F received a full-time education however it leaves some uncertainty around whether the interventions such as a part-time timetable could have been implemented earlier. This may have led to earlier reintegration.
37. The Council carried out an annual review of F’s EHC Plan in December 2023. It did not issue his amended final Plan until April 2024 which was a delay of seven weeks. That was fault and delayed Mrs X’s right of appeal to the SEND tribunal. It is reasonable for Mrs X to use her right of appeal from this point if she wishes to challenge the named placement and/or any content outlined in the amended Plan.
38. We have carried out similar investigations to this with the Council since the scope of this case which have resulted in service improvements. This includes:
• ensuring relevant staff adhere to statutory timescales for issuing EHC Plans following annual reviews.
• Reviewing how it ensures children and young people out of school receive an education and the specialist provision set out in EHC Plans.
• Addressing the issues identified in this case as part of its SEND improvement plan.

Therefore, I have not made further service improvements.

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Agreed action

39. Within one month of the final decision the Council agreed to pay Mrs X £900 to acknowledge the distress and uncertainty caused by the Council’s lack of oversight of F’s education at School B between March 2023 and January 2024. This payment also recognises the frustration caused by the delay in issuing the amended EHC Plan following the December 2023 annual review.
40. The Council should provide us with evidence it has complied with the above actions.

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Final decision

41. I completed this investigation. I found fault and the Council agreed to my recommendation to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman