Summary: Miss B complains the Council did not attend or acknowledge the annual reviews in 2022 and 2023 for her son’s Education, Health and Care Plan and did not provide alternative provision for him after being made aware he was put on a reduced timetable. She also complains about the Council’s handling of her complaints and the lack of communication. There was fault by the Council. It did not meet annual review statutory timescales and did not arrange alternative provision for Miss B’s son after it was made aware he was out of school. Miss B suffered distress and frustration, and the Council’s failure to meet statutory timescales delayed her appeal rights to the Tribunal. Miss B's son suffered a loss of education. The Council will apologise to Miss B, make a symbolic payment, and provide staff training.

The complaint

1. Miss B complains the Council did not attend or acknowledge the annual reviews in 2022 and 2023 for her son’s EHC Plan (EHC Plan) and did not provide alternative provision for him after being made aware he was placed on a reduced timetable at school in February 2023. She also complains about the Council’s handling of her complaints and lack of communication.
2. Miss B says her son has suffered a loss of education, her family has been physically and emotionally affected, and she has suffered a financial loss through having to pay for an independent Educational Psychologist (EP) report.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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 has done. (Local Government Act 1974, sections 26B and 34D, 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. 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. 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)
8. 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 have and have not investigated

9. I have investigated matters in this case from February 2023. I reference matters before this date for context.
10. I have not investigated:
• Miss B’s complaint the Council did not attend the annual review held in 2022. This is because this part of the complaint is late, and I have seen no good reason Miss B could not have complained to us about this sooner.
• Any reference to the outcome of the Children’s Social Care needs assessment. This is because Miss B says she has logged a separate complaint with the Council about this. If Miss B is unhappy with the Council’s final response about this, she may bring a separate complaint to us for us to consider.
• Any refence to the contents of Miss B’s son’s final EHC Plan. This is because Miss B can, and has, appealed the contents of the plan to the First Tier Tribunal (Special Educational Needs and Disability) (SEND).

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How I considered this complaint

11. I read Miss B’s complaint and spoke to her about it on the phone.
12. I considered information provided by Miss B and the Council.
13. Miss B and the Council have had an opportunity to comment on my draft decision. I have considered their comments before making a final decision.

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What I found

14. A child with special educational needs may have an Education, Health and Care plan (EHC Plan). This sets out the child’s need 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 education, or name a different school. Only the Tribunal can do this.
15. The Council is responsible for making sure that arrangements specified in the are out in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.
16. 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 only takes effect 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.
17. The courts have established that if someone has or could have lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC Plan we cannot seek a remedy for lack of education after the date the appeal right takes effect if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407)
18. The Council has a duty to secure the specified special educational provision in an EHC Plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the Council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
19. The procedure for reviewing and amending EHC Plans is set out in legislation and government guidance.
20. Within four weeks of a review meeting, a Council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code of Practice 2015 paragraph 9.176)
21. Where a 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 of Practice 2015 paragraph 9.194)
22. The Special Educational Needs and Disability Code states if a Council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code of Practice 2015 paragraph 9.176)
23. Following comments from the child’s parent or the young person, if the Council decides to continue to make amendments, it must issue the amended EHC Plan as soon as practicable and within eight weeks of the date it sent the EHC Plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code of Practice 2015 paragraph 9.196)
24. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC Plan. The right of appeal only takes effect when the final amended plan is also issued.
25. 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.
26. 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)
27. 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)
28. 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))
29. 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)
30. 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

What happened

31. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
32. Miss B’s son, C, has special educational needs. He was initially provided with an EHC Plan in February 2021.
33. In early February 2023, an annual review of C’s EHC Plan was held. The Council did not attend the annual review meeting. The Council says although it was informed of the annual review and invited to attend, it is not able to do so. The Council says it has insufficient resources to enable it to attend annual reviews for all children in its area.
34. During the annual review meeting it was decided that a reduced timetable would begin from 6 February 2023 as C’s school was struggling to meet his needs. The outcome of the annual review was to amend the EHC Plan.
35. On 6 February 2023, C was placed on a reduced timetable at school for three hours or less per day.
36. A few days later, Miss B emailed the Council for help. She told it C’s school was struggling to meet his needs and they were struggling as a family. C’s school also emailed the Council for help, and confirmed that it was struggling to meet C’s needs effectively as a mainstream school.
37. Miss B emailed the Council again in early March 2023 to ask for an update on the amended EHC Plan.
38. In late March 2023, the Council responded to C’s school. It said it would complete the EHC Plan amendments by week starting 24 April 2023 and it would then send them to Miss B to approve. The Council also agreed to attend a co-production meeting with Miss B and C’s school, which took place on 19 April 2023.
39. On 19 May 2023, C was suspended from school for two days, and C’s school complained to the Council about its lack of support.
40. On 9 June 2023, an emergency review took place. It decided C’s setting could not meet his needs for the remaining two years of primary education, and specialist provision was needed.
41. On 4 August 2023, the Council sent a notification letter to Miss B of its decision to amend C’s EHC Plan.
42. On 5 August 2023, Miss B sent a letter to the Council objecting to the amendments, as she believed the draft amended EHC Plan was inadequate. She also asked for education other than at school (EOTAS).
43. In mid-August 2023, Miss B raised a complaint with the Council and told it C was too unwell to attend school full time.
44. In early September 2023, Miss B contacted the Council and asked for alternative education for C. She told the Council a reduced level of education would be best due to burnout, and that alternative provision (forest school) already in place which C’s school arranged, has been helpful for C.
45. On 18 September 2023, Miss B raised a stage one complaint with the Council. She told the Council it had been difficult to communicate with, it had not provided alternative provision, and the draft amended EHC Plan did not reflect C’s needs.
46. The Council sent Miss B an acknowledgement and told her it would send a complaint response to her on or around 16 October 2023.
47. Miss B says C stopped attending school in October 2023.
48. In mid October 2023, Miss B raised a stage two complaint with the Council. She told the Council:
• There had been a lack of support when she and C’s school had contacted it for support;
• It had provided no alternative provision for C despite him being out of school for more than 15 days; and
• It had not sourced evidence needed to meet C’s needs such as Speech and Language Therapy (SaLT) and Occupational Therapy (OT) reports.
49. The Council sent Miss B an acknowledgement and told her it would send a complaint response to her on or around 14 November 2023. It later told her an extension had been requested and it would send a response to her by 15 December 2023.
50. Miss B received a letter from the Council on 11 December 2023 of its notification to amend the EHC Plan.
51. On 12 December 2023, the Council agreed to provide C with EOTAS.
52. On 12 January 2024, Miss B chased the Council for a response to her complaint she raised with it in September 2023.
53. On 27 February 2024, the Council contacted Miss B with an update. It told her it had sought advice about the EOTAS package.
54. In early March 2024, Miss B raised a further complaint with the Council. She told it she was still waiting for an EOTAS package, it had not met statutory timescales, and she wanted the Council to issue the amended EHC Plan immediately.
55. In late March 2024, C was taken off roll from his school and Miss B had a meeting with the Council to discuss an EOTAS package.
56. On 3 April 2024, the Council issued the final amended EHC Plan, with EOTAS named in section I.
57. On 2 May 2024, the Council sent Miss B a stage one and stage two complaint response after she had already contacted the Ombudsman about the matter. It upheld Miss B’s complaints that:
• It did not acknowledge C’s annual review;
• There was a lack of correspondence; and
• It did not provide alternative provision and there was a delay in sourcing an suitable EOTAS package.

Analysis

58. The Council has acknowledged, and it is clear from the documentation, there have been significant delays in this case. The Council did not write to Miss B following the 2023 annual review to explain it would amend C’s EHC Plan within the statutory timescales. The annual review took place on 1 February 2023. Miss B received the notification letter following the annual review on 4 August 2023. And she received the final amended EHC Plan on 3 April 2024. This is a delay of 11 months.
59. The 11 month wait delayed Miss B’s right of appeal to the Tribunal until it sent the decision letter in April 2024. The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the required timescales here is fault by the Council and has caused Miss B distress and frustration.
60. The Council issued the final amended EHC Plan in April 2024. The final plan gave Miss B the right to appeal to the SEND Tribunal. While Miss B disagrees the EHC Plan reflects C’s current needs and the Council has not sourced up to date assessments, the way for her to challenge this was by appealing to the SEND Tribunal, which Miss B has done. The courts have established the Ombudsman cannot investigate matters which are appealable to the Tribunal.
61. C was placed on a reduced timetable from 6 February 2023, only attending school for three hours or less per day. This decision was made during the 2023 annual review meeting where it was also decided the EHC Plan would be amended. So, the Council was aware at this point C’s school was struggling to meet his needs and he would not be receiving all the provision in section F once on a reduced timetable. As outlined in paragraph 18, Section 42 of the Children and Families Act requires councils to secure provision in section F of an EHC Plan. C has had an EHC Plan since February 2021, so while the Council was amending his EHC Plan at this time, C’s original EHC Plan was still in place and the Council still had a duty to ensure C received the provision outlined in section F. The Ombudsman expects councils to provide as much of the special educational provision as possible in a home or an alternative setting even where a child cannot attend school. The council failed to do this. This was fault.
62. The law also requires a Council to arrange suitable education for a child it knows cannot attend school due to exclusion, illness or other reasons. The Council was aware C was not attending school in October 2023, and the alternative provision (forest school) also broke down at this time due to C’s escalated behaviour. This meant C was not receiving alternative provision, as well as the provision outlined in section F of his EHC Plan. It should have ensured C received education provision from this time or taken steps to secure his attendance. The Council did neither, and it delayed arranging an EOTAS package. This was fault.
63. The fault caused an injustice to C. C missed section F provision and education for 17 months – from February 2023 when he was placed on a reduced timetable, to July 2024, when a tutor was put in place by the Council as part of C’s EOTAS package.
64. As explained in paragraph 60, once an appeal right takes effect, we cannot consider matters which can be dealt with by an appeal to the tribunal. We can therefore only recommend a remedy for missed education for 14 months from February 2023 until the Council issued the final EHC Plan in April 2024. The Council’s failure to ensure C received education provision from February 2023 to April 2024 is fault. C has missed education for 17 months. But, as explained above, we can only remedy missed education for 14 months.
65. Miss B told us she has suffered a financial loss through having to pay for an independent EP report. She told us she paid for a report herself because she felt as though one was needed. The Council’s refusal to arrange an EP report led to what Miss B considers to be an inadequate EHC Plan. One of the consequences of the Council’s refusal to get an EP report is therefore a plan which Miss B claims doesn’t meet the needs of C, which she has appealed. We cannot therefore recommend the Council reimburse Miss B for the costs of the independent EP report, as we cannot investigate matters, or closely linked matters which are appealable to the Tribunal.
66. It is clear from the documentation, and the Council has acknowledged there have been delays and communication with it has been difficult. The Council has apologised to Miss B for this and explained the reason for this was a change of staffing which caused barriers to communication.
67. Sometimes we will recommend a financial payment to the person who brought their complaint to us. This might be to reimburse a person who has suffered a quantifiable financial loss, or it might be more of a symbolic payment which serves as an acknowledgement of the distress or difficulties they have been put through. But our remedies are not intended to be punitive and we do not award compensation in the way a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider.
68. The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice because of fault by a Council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
69. When a young person has missed education because of fault by the Council, we may recommend the Council makes a symbolic payment to acknowledge the education they have missed and help them to catch up. We usually recommend a payment of between £900 and £2,400 per term to acknowledge the impact of that loss.
70. In determining an appropriate level we will take account of factors such as:
• The severity of the young person’s SEN as set out in the EHC Plan;
• Any educational provision that was made during the period;
• Whether additional provision now can remedy some or all of that loss; and
• Whether the period affected was a significant one in a young person’s school career, for example the first year of compulsory education, the transfer to secondary school or the period preparing for public exams.
71. Given C’s age, the stage of his education and the level of education that was provided, I consider a payment of £900 per term of missed provision would be appropriate. This should be used for the educational benefit of C, to acknowledge the impact of the loss.
72. The Council did not ensure provision in section F was secured, or provide suitable education from February 2023. C missed 17 months of education. However due to Miss B’s appeal rights being in place in April 2024, we can only consider this until April 2024.

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Agreed actions

73. To remedy the outstanding injustice caused to Miss B and C by the fault I have identified, the Council will take the following action within four weeks of my final decision:
• Apologise to Miss B and C for not ensuring C was provided with suitable education and for the delays in the annual review and complaints process. This apology should be in accordance with the Ombudsman’s guidance Making an effective apology.
• Pay Miss B a symbolic payment of £500 for the distress caused by the delays in the annual review process, which delayed her right of appeal.
• Pay Miss B £3,150 for not providing education to C from February 2023 to April 2024. This money should be used for C’s benefit.
• Remind all relevant staff of the importance of meeting statutory timescales for EHC Plan annual reviews.
• Issue a briefing to ensure all relevant staff are aware of the Council’s statutory obligation to ensure a child receives a suitable education if they cannot attend school.
74. The Council should provide us with evidence it has complied with the above actions.

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Final decision

75. I have completed my investigation and uphold Miss B’s complaint. There was fault by the Council which caused injustice to Miss B and C. The action it has agreed to take is sufficient to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman