Summary: Miss X complained the Council has failed to provide a suitable full-time education for her son. And that the Council delayed in completing a review / re-assessment of her son’s Education, Health and Care (EHC) needs and in issuing and amended final EHC Plan. We found the Council made a suitable offer of education pending a re-assessment of Miss X’s son’s needs. However the failure to complete the re-assessment and issue a final EHC Plan within the statutory timeframe is fault. This fault has caused Miss X an injustice.

The complaint

1. The complainant, Miss X complained the Council has failed to provide a suitable full-time education for her son.
2. Miss X also complained the Council delayed in completing a review / reassessment of her son’s EHC Plan and in issuing and amended final EHC 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. 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 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

9. I have not considered Miss X complains about bullying and incidents at Y’s school in 2022. The Ombudsman has no jurisdiction to consider complaints about these issues. These events also occurred more than 12 months before Miss X complained to the Ombudsman.
10. As Miss X complained to the Ombudsman in January 2024 we would generally only investigate events in the previous 12 months, that is since January 2023. We have exercised discretion to consider events in the Autumn of 2022 but do not consider it appropriate to consider any earlier events. I have referred to events earlier in 2022 for context.
11. I have not considered events since 24 November 2023 when the Council issued Y’s Final EHC Plan as Miss X has exercised her right of appeal to the SEND Tribunal.

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How I considered this complaint

12. As part of the investigation, I have:
• considered the complaint and the documents provided by Miss X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Miss X
• Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Education, Health and Care Plans

13. 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.
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)  

Reviewing EHC Plans

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. 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.
16. Where a council decides a re-assessment is appropriate, it must follow the same process as for the first EHC needs assessment. The maximum timescale for a re-assessment is 14 weeks from the decision to re-assess to the issuing of a final EHC Plan (Section 27(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.192)

Alternative provision

17. 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.
18. 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)

What happened here

19. Miss X’s son, Y has had an EHC Plan for several years, and attended a Social, Emotional and Mental Health (SEMH) special school. At an emergency Annual Review in March 2022 Y’s family said they wished to electively home educate Y. Y attended school until late April 2022 and was then home educated
20. In July 2022 Miss X said she no longer wanted to electively home educate Y and asked the Council to secure Y a place at a mainstream school. The Council consulted Miss X’s preferred school, School 1 but School 1 said it could not meet Y’s needs.
21. Miss X was concerned School 1 had not offered a place due to a false image of Y presented by the current EHC plan and annual review documents.
22. The Council’s SEN panel agreed that Y’s needs should be reassessed by an Educational Psychologist. This would give a clear updated view of Y’s cognitive profile and inform the type of school setting that would best meet his needs. The Council agreed to make a referral to an Educational Psychologist in September 2022. It also offered to provide tuition while it obtained the Educational Psychologist’s advice and updated Y’s EHC Plan.
23. The Council began providing one to one tuition each week from 3 October 2022. Miss X says the tuition was initially 15 hours each week after school hours. She says this was unsuitable as it was a busy time of day when Y’s siblings were at home. The one to one tuition was subsequently increased to 20 hours each week.
24. The Council received the Educational Psychologist’s report in February 2023 and issued a draft EHC plan on 14 March 2023. The Council re consulted School 1 in April 2023 and they responded in May 2023. School 1 said it would not offer Y a place as it could not meet his needs.
25. On 20 July 2023 the Council consulted School 2, a SEMH school. School 2 confirmed it would offer Y a place from September 2023. The Council then issued a Final EHC Plan on 24 November 2023 naming School 2.
26. The Council agreed the one to one tuition would remain in place until the end of term but expected Y to attend School 2 from January 2024.
27. Miss X has appealed to the SEND Tribunal. She also made a formal complaint to the Council in January 2024. Miss X complained Y had been out of school since April 2022 but home tuition was not agreed until September 2022. She was unhappy the tuition had ended in December 2023 and that the Council had named a school she did not consider suitable. She also complained about delays in amending Y’s EHC Plan.
28. The Council’s response noted it was Miss X’s decision to withdraw Y from school in April 2022 to electively home educate him instead. When Miss X informed the Council in July 2022 she no longer wanted to home educate Y the Council arranged a reassessment of his needs and offered tuition. It did not uphold this element of her complaint
29. It did however uphold Miss X’s complaint that the Council had failed to update Y’s EHC Plan within the statutory timeframes. The Council said it had named School 2 in Y’s plan as it was confident the setting could meet Y’s needs.
30. Miss X was not satisfied with the Council’s response and asked for her complaint to be considered further, in particular the circumstances which led to the decision to electively home educate Y. The Council did not uphold Miss X’s complaints.
31. As Miss X remains dissatisfied she has asked the Ombudsman to investigate her complaints.
32. In response to my enquiries the Council says that following the re-assessment it concluded Y required a SEMH school to meet his needs. Although Miss X has declined a place at School 2 the Council is satisfied a SEMH setting remains the appropriate and required option to meet Y’s needs.
33. The Council acknowledges it did not hold a formal annual review in 2023 and accepts this was fault. It also accepts there was a delay in getting a re-assessment from an Educational Psychologist, which again is fault.
34. It notes Y received 20 hours of intense one to one tuition each week, which Miss X was happy with and said Y was flourishing. The Council acknowledges this is below the statutory requirement of 25 hours of education per week but asserts it must be taken into consideration that this is a very intense form of learning.

Analysis

35. The Council’s failure to complete the re-assessment of Y’s special educational needs in accordance with the statutory timeframes is fault. The whole process should be completed within 14 weeks of the decision to re-assess. In this case the Council took over a year. The Council should have issued a final EHC Plan by 23 December 2022 but did not do so until 24 November 2023. Delays of this nature are both concerning and clearly unacceptable.
36. While the Council acknowledges there was a delay in getting a re-assessment from an Educational Psychologist, it has not explained the further delay between issuing a draft Plan in March 2023 and the final Plan in November 2023.
37. 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 timeframes here amounts to fault.
38. The delay in the re-assessment process and in issuing and amended final Plan caused Miss X frustration and uncertainty. It also delayed her ability to exercise her right of appeal to the SEND tribunal.
39. Councils have a duty to arrange suitable education for a child it knows cannot attend school. The Council has provided tuition throughout the re-assessment period up until a place was available at School 2. I consider his to be an appropriate response.
40. The law does not define full-time education but it is commonly held to be between 22 and 25 hours a week depending on the age of the child. However, where a council is arranging one to one tuition, fewer hours may be appropriate given the increased intensity of the learning. In this instance the Council provided 20 hours one to one tuition each week.
41. Miss X has not complained about the number of hours tuition, but rather that it was not agreed until September 2022 when Y had been out of school since April 2022.
42. Miss X’s decision to electively home educate Y in April 2022 and what happened in the months immediately following this decision is outside the scope of my investigation. These event occurred significantly more than 12 months before Miss X complained to the Ombudsman.
43. I am satisfied the Council considered its duty to arrange suitable education for Y pending the re-assessment of his needs and an amended EHC Plan, and made an appropriate offer of support.
44. Miss X complains that Y has not received any educational provision since the tuition ended in December 2023. I am unable to consider this element of Miss X’s complaint as Miss X has appealed to the SEND Tribunal.
45. 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)
46. 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.
47. 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.

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Agreed action

48. The Council has agreed to:
• Apologise to Miss X and Y for the delay in the re-assessment process and in issuing a final EHC Plan. 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.
• make a payment to Miss X of £300 to recognise the distress and uncertainty the Council’s delays in the re-assessment process and in issuing a final EHC Plan have caused her;
• issue written reminders to relevant officers about the statutory timescales for completing EHC needs assessments and EHC Plans and the need to comply with these timescales.
49. The Council should take this action within one month of the final decision on this complaint and provide us with evidence it has complied with the above actions.

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Final decision

50. The Council’s failure to complete the re-assessment and issue a final EHC Plan within the statutory timeframe is fault. This fault has caused Miss X an injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman