Summary: Miss Y complains the Council delayed when updating her son’s EHC plan. As a result, she says he remained in an unsuitable school and eventually received a permanent exclusion. After the exclusion Miss Y says the Council failed to make timely alternative provision available. We find fault causing injustice which the Council has agreed to remedy with the actions listed at the end of this statement.

The complaint

1. Miss Y complains the Council has failed to update her son’s EHC plan since the annual review held in January 2023.
2. Miss Y says this delay has left her son in the wrong school, he has missed periods of education, and he has now been permanently excluded. Miss Y’s appeal rights have been frustrated and the Council’s actions have negatively affected her mental health.
3. Miss Y wants the EHC plan to be finalised naming a suitable school for her son.

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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. 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

7. During my investigation I considered the information provided by Miss Y and gave her the opportunity to discuss the complaint with me by telephone.
8. I made enquiries of the Council and considered its response alongside the relevant law and guidance which I have referred to in this statement.
9. Miss Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making this final decision.
10. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I found

What should happen

Section 19 duties

11. 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))
12. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ 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”. 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))
13. 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)
14. Full-time education is not defined but is commonly held to be equivalent to between 21 and 25 hours a week, depending on the age of the child. However, if a Council is arranging one-to-one tuition, fewer hours may be appropriate, giving the increased intensity of learning. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
15. 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 mind? How councils can do more to give children out of school a good education, published in 2016). We made recommendations that councils should:
• consider the individual circumstances of each case and be aware that councils 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 in coming to decisions;
• decide, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

Permanent exclusions

16. A head teacher may permanently exclude a pupil from school in response to a serious breach or persistent breaches of the school's behaviour policy, and where allowing the pupil to remain in school would seriously harm the education or welfare of other pupils in the school.
17. Councils have a statutory duty to arrange suitable full-time education for the pupil to begin from the sixth school day after the first day the permanent exclusion took place. The education arranged must be full-time or as close to full-time in accordance with the child’s best interests or because of their health needs. (Statutory guidance ‘Suspension and Permanent Exclusion from maintained schools, academies and pupil referral units in England, including pupil movement’)

Reviewing EHC plans

18. Councils must arrange for EHC plans to be reviewed at least once a year to make sure they are up to date. Councils 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.
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. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC plan has been issued.

Key events relevant to the complaint

22. Miss Y’s son, D, has an EHC plan and in 2022 he attended a mainstream primary school. The EHC plan was annually reviewed on 30 November 2022 with significant changes recommended.
23. The Council issued an amendment notice on 9 January 2023.
24. The Council contacted Miss Y on 28 February to apologise for the delay in amending D’s plan. It wrote to her again on 16 March to apologise for the ongoing delay and to say that staff shortages meant that it could not yet allocate a caseworker to complete the changes. The Council anticipated that it would allocate a caseworker in June.
25. On 19 May the Council wrote to Miss Y again to further apologise for the delays and to confirm that a caseworker will contact her by 9 June.
26. The Council issued a draft EHC plan seven days later. Miss Y responded with her proposed amendments.
27. In June the Council consulted with two potential schools for D. In the meantime, Miss Y contacted the Council to say that D’s mainstream school placement was on the verge of breakdown due to the school’s inability to meet his needs.
28. The SEN Coordinator (SENCO) from D’s school contacted the Council on 3 July to confirm that D’s placement was likely to breakdown due to his level of dysregulation. The SENCO explained that D receives support from two teaching assistants, but he often needs the support of three.
29. One of the schools consulted by the Council responded on 19 July to confirm that it had no space to admit D.
30. In early August Miss Y contacted the Council again to say she had received no further update on D’s EHC plan despite her emailing the allocated caseworker several times. Miss Y also told the Council that D was no longer attending school.
31. The Council responded to Miss Y to say it had allocated a new caseworker to D’s case following the departure of the previous one.
32. D returned to his primary school from 3 October.
33. On 19 October D received a permanent exclusion from the school following a physical assault against staff and disruptive behaviour.
34. Miss Y spoke with the Council on 22 November and said she wanted D to receive provision whilst waiting for his EHC plan to finalise. The Council contacted a local Pupil Referral Unit (PRU) to request ‘day six’ provision for D.
35. D started at the PRU from 29 November and initially received one hour of education per day. Miss Y reported that D settled well and enjoyed attending.
36. The Council contacted Miss Y again in January 2024 to discuss other potential schools for consultation. Around this time D’s timetable at the PRU increased to ten hours a week.
37. On 25 January 2024 D’s previous school removed him from their roll.
38. The Council issued a final EHC plan on 15 February naming the PRU for the rest of this school year and a different school for D to attend from September 2024.
39. The PRU responded to the Council. It said it was not suitable for D to attend there on a long-term basis and for the rest of the school year due to his level of need. The PRU confirmed that D was only able to access a part-time timetable and that his placement was subject to a fortnightly multi-disciplinary team (MDT) meeting to keep matters under review.
40. The PRU contacted the Council again on 4 March. It said, “… it is absolutely not an appropriate setting for a year 2 child with significant SEN needs who has no peer group and is requiring constant 1:1 which we are not funded to provide”.
41. D’s provision increased from two to three hours a day from 14 March.
42. The Council contacted the school due to admit D from September 2024 and asked whether it would be possible to allocate a place sooner. The school responded to say it had no spaces until September.

Was there fault in the Council’s actions causing injustice to Miss Y and D?

EHC timescales

43. The statutory timescales sat that the Council must notify a parent of its decision and issue any proposed amendments within four weeks of the annual review meeting. The eventual final amended EHC plan must be issued within a maximum of 12 weeks from the annual review meeting. In D’s case, the Council was meant to have issued a draft plan by 28 December 2022. The Council did not issue a draft version of D’s amended EHC plan until 26 May 2023. The Council should have issued the final EHC plan by 22 February 2023, but instead it issued the plan on 15 February 2024. This amounts to almost 12 months of delay and is fault.
44. The delay caused Miss Y avoidable time and trouble as she regularly contacted the Council for updates. The delay also caused injustice to D because he was prevented from receiving the specialist provision he needed. I will deal with this further in the section below.

Alternative provision

45. D stopped attending primary school in August 2023 but returned in October following an agreement with the school. D received no educational provision throughout September. The Council needed to consider whether D’s school placement was “reasonably available and accessible” to him once he stopped attending. We have not seen any evidence to show how this important factor was considered. Our principles of good administrative practice say councils should give reasons for their decisions and keep proper records. There was therefore fault in the way the Council determined that the education was available and accessible to D and that he did not need alternative provision in September.
46. However, I do not consider this fault caused significant injustice to D. This is because, on balance, I consider it likely that – even if it had been properly recorded – the Council’s decision would have been the same. That is, that the education was available and accessible for D and it did not have a Section 19 duty to make alternative provision. I have made this decision because D returned to the primary school on 3 October and it was therefore available and accessible for him, albeit only for a short time before his exclusion.
47. The Council had a duty to make suitable alternative provision available for D six days after his permanent exclusion. Despite this, the records show D received no educational provision between his exclusion on 19 October and his admission to the PRU on 29 November (29 days after his exclusion). This meant he lost 15 school days of provision in October and November. This is fault which caused D an injustice.
48. The provision arranged from 29 November was for five hours each week. This later increased to ten hours a week from 30 January and fifteen hours from 14 March. The Council has not provided any evidence of its decision making to show how it considered what level of provision was in D’s best interests. Instead, the offer appears to be based on the availability of provision. This is also fault which caused D an injustice.
49. We therefore find that D missed 15 days of total provision. We also find that D only received part time provision from November onwards. In the absence of any professional judgement outlining why this was in D’s best interests, this is fault causing injustice.
50. Although the PRU has expressed concerns that its provision is not suitable for D, we cannot consider the quality of the provision because it is named in D’s EHC plan for this academic year. Miss Y had a right of appeal in February against the decision to name the PRU until September.

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Agreed action

51. Within four weeks of my final decision, the Council has agreed to complete the following remedial actions.
• Issue a written apology to Miss Y and D for the fault identified in this statement. When doing so, the Council will consider the LGSCO’s guidance on Making an effective apology.
• Pay £500 to Miss Y. This is a symbolic payment in recognition of the significant time, trouble and distress she experienced from the fault. This is also in recognition of her frustrated appeal rights caused by the delay.
• Pay £1,463 to Miss Y for D’s educational benefit. This is a symbolic payment based on £1,200 per school term of total missed provision. The payment for D is pro-rata and takes into account D’s age, his needs and the part time provision he received this school year in line with the LGSCO’s Guidance on Remedies. The payment is calculated as follows:
1. Total loss of provision for 15 school days 2023 (£275).
2. Partial missed provision for the seven school weeks between 29 November to 30 January when D received five hours of provision each week, which is around a quarter of the full time equivalent (£483).
3. Partial missed provision for the six school weeks between 30 January and 14 March when D received ten hours of provision each week, which is around a half of the full time equivalent (£277).
4. Partial missed provision for the fifteen and a half school weeks from 14 March when D received fifteen hours a week which is around 70% of the full time equivalent for the remaining two and a quarter school terms (£428).
52. The Council will provide us with evidence it has complied with the above actions.

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Final decision

53. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The actions listed in the section above will provide an appropriate remedy for the injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman