Summary: Ms X complained the Council failed to review her child’s Education, Health and Care Plan in the statutory timescales. Ms X also complained the Council failed to provide education for her child since December 2022. We found fault with the Council delaying review of the Education, Health and Care Plan by six months outside the statutory timescales. We also found fault with the Council failing to ensure Ms X’s child received a suitable education, or the educational provision in their EHC plan, from 15 March 2023 to 5 July 2023 and from 28 September 2023 to 19 January 2024. The Council agreed to apologise to Ms X and pay her £350 for the frustration and inconvenience caused. The Council also agreed to provide Ms X with a payment for any provision she funded from April 2023 to 5 July 2023 and provide her with a payment of £3,250 for her child’s missed education.

The complaint

1. Ms X complained the Council failed to review her child’s Education, Health and Care Plan in the statutory timescales.
2. Ms X also complained the Council failed to provide full-time alternative provision of education for her child who was out of education.
3. Ms X says she sourced 6 hours of education for her child each week from 18 April 2023 which the Council later agreed to fund until the end of the 2022/2023 academic year. Ms X says her child is still out of education.

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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. (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. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
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 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

10. I have investigated Ms X’s complaint about the failure to provide education for her child from December 2022 to 19 January 2024. I have also investigated the delays in production of the Education, Health and Care (EHC) Plan.
11. I have not investigated Miss X’s complaint about the contents of the final EHC Plan produced on 19 January 2024. This is because Ms X gained an appeal right to the Special Educational Needs and Disability (SEND) tribunal on 19 January 2024. This appeal right was about the contents of the EHC Plan including the school named in the plan.
12. I have also not investigated the provision of education for Ms X’s child since 19 January 2024. This is because the Council provided its final complaint response in August 2023. A council must be given opportunity to investigate a complaint before the Ombudsman investigates. While I have extended my investigation until 19 January 2024, the production of the final EHC Plan creates a distinct change in situation which would be the subject of a new complaint.

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How I considered this complaint

13. I have considered all the information Ms X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
14. Both Ms X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

EHC Plans rules and regulations

15. A child with special educational needs may have an Education, Health and Care (EHC) Plan. An EHC Plan describes the child’s special educational needs and the provision required to meet them.
16. 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.
17. 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) 
18. 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.
19. In 2022, the case of R (L, M and P) v Devon County Council said when a local authority proposes to amend an EHC Plan the regulation which requires the Council to notify a parent of its decision within four weeks and the regulation which set outs the process for amending the EHC Plan must be read together. This means the maximum time from the annual review meeting to final plan should be 12 weeks.
20. Once the Council completes the EHC Plan it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
21. The Ombudsman can look at any delay in the assessment and creation of an EHC Plan as well as any failure by the Council to deliver the provision within an EHC Plan.

What happened

22. On 20 June 2022, the Council issued the first EHC Plan for Ms X’s child, who I shall refer to as Y.
23. On 27 March 2023, the Council held an annual review meeting for Y’s EHC Plan.
24. Ms X complained to the Council on 28 April 2023 about its failure to make a decision about Y’s EHC Plan following the annual review meeting.
25. The Council issued its Stage 1 complaint response on 2 June 2023 confirming it had decided to amend Y’s EHC Plan.
26. On 8 June 2023, the Council issued an amendment notice for Y’s EHC Plan confirming its plan to amend Y’s EHC Plan.
27. On 19 January 2024, the Council issued the Final EHC Plan for Y. The Council named Y’s current mainstream school in Section I of Y’s EHC Plan.

Analysis - Delays

28. A council must complete a review of child’s EHC Plan within 12 months of production of the first EHC Plan.
29. The Council held Y’s annual review meeting on 27 March 2023. The Council held this meeting in good time to complete the EHC Plan review within 12 months.
30. A review is complete when a council makes a decision to maintain, amend or cease and EHC Plan. This should be completed within 12 months of the first EHC Plan but also within four weeks of the annual review meeting. Since the Council held the annual review meeting on 27 March 2023, this meant the Council had until 24 April 2023 to decide whether to amend, cease or maintain Y’s EHC Plan.
31. The Council only issued the notification letter to amend Y’s EHC Plan on 8 June 2023. This was six and a half weeks outside the statutory timescales and was fault.
32. Since the Council decided to amend Y’s EHC Plan, it had 12 weeks from the annual review meeting to produce the final amended EHC Plan. This meant the Council had until 17 July 2023 to produce the final amended EHC Plan.
33. The Council only produced Y’s final amended EHC Plan on 19 January 2024. This was six months after the Council’s deadline for production of the final amended EHC Plan. This was fault.
34. This fault caused Ms X avoidable frustration and uncertainty through the delays in production of the Final EHC Plan.
35. The Ombudsman’s guidance on remedies says we will normally recommend an award of up to £500 for uncertainty and frustration caused through the Council’s fault. I consider the Council should pay Ms X £350 for the delays caused by its fault. This £350 payment is a symbolic payment to recognise the frustration and uncertainty caused.

Analysis – EHC Plan provision

36. The Council had a legal duty to provide the content of Y’s EHC Plan until it ceased the EHC Plan or amended it. This meant the Council had a duty to provide all provision detailed in Section F of Y’s EHC Plan from 20 June 2022 until 19 January 2024.
37. The 20 June 2022 EHC Plan detailed that Y’s school should provide the entirety of Y’s Section F provision. Since the Section F EHC Plan is directly linked to Y’s access to education through his school setting, I have addressed the provision of Y’s EHC Plan support in paragraphs 75 to 78.
38. Once the Council produced Y’s new EHC Plan on 19 January 2024, it had a responsibility to provide any provision detailed in this new plan. Should Ms X dispute the content of the EHC Plan this is appealable to the SEND Tribunal and is not a matter for the Ombudsman.

Alternative provision of education rules and regulations

39. 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.
40. 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))
41. 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)
42. 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
43. 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;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• 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:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

44. 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.
45. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when it is clear a child would be away from school for 15 days or more.
46. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

What happened

47. In September 2022, Y’s school created an individual education plan for Y. Y attended school regularly until the week starting 16 January 2023. Before this date, Y missed only three days of school.
48. From 17 January 2023, Y started to attend half-days of school as part of an agreed part-time timetable with the school.
49. On 2 February 2023, Ms X told the Council Y was on a reduced timetable and told it the school would be submitting an early review request for Y’s EHC Plan.
50. Y stopped attending school entirely on 21 February 2023.
51. On 27 February 2023, Y’s school told the Council that Y was refusing to come to school and it now considered Y a consistent school non-attender. The school told the Council it had a structured plan in place but this has broken down.
52. During the 27 March 2023 EHC Plan annual review meeting, the Council noted Y’s attendance at 66% with Y not attending school since 21 February 2023. Y’s school said it considered Y could attend school. The School recommended an Alternative Provision provider, Provider 1, to help support Y back into education at the school. The Council made no comment about the suitability of Y’s school for Y at this time.
53. From 18 April 2023, Y attended Provider 1 for six hours each week funded by Ms X.
54. On 28 April 2023, Ms X made a formal complaint to the Council about the lack of education for Y. Ms X reiterated that Y had not been attending school. Ms X chased the Council through May 2023 for education for her child.
55. The Council spoke with Y’s school on 22 May 2023 who confirmed Y was not attending and that Ms X was paying for Provider 1 to support Y. The Council said it would consider providing funding for Provider 1.
56. On 2 June 2023, the Council responded to Ms X’s complaint. The Council said it understood Y was receiving education through Provider 1 and it would provide funding to Y’s school for this.
57. The Council held meetings to discuss providing funding for Provider 1 in June 2023. At a meeting on 19 June 2023, the Council said it would provide funding while it continued to consider the suitability of Y’s educational placement.
58. On 5 July 2023, the Council agreed funding for Provider 1 and support at school including a 1:1 Teaching Assistant for Y at the school. The Council said this was with the view to reintegrating Y into school with Provider 1 as a support tool for this. The Council held discussions with Ms X between 9 July 2023 and 24 July 2023 to discuss reintegration plans. Ms X agreed in principle to the plans with some changes. The Council provided backdated funding to Y’s school for Provider 1.
59. In August 2023, the Council created a formal reintegration plan for Y to start in September 2023. The Council signed off on additional funding for Provider 1 to provide 12 hours per week.
60. On 28 September 2023, the Council held an Area Inclusion Discussion (AID) meeting to discuss Y’s education. The meeting confirmed Y was not accessing education at school. The Council instructed Y’s “school to explore expanding alternative provision”.
61. On 25 October 2023, the Council told Ms X it considered Y could access education the school. The Council’s notes stated reintegration of Y into school was “being planned”. Ms X disputed the suitability Y’s school and said reintegration had failed so far.
62. A Special Advisory Teacher attended Provider 1 on 14 December 2023 to assess Y. The Special Advisory Teacher confirmed there was no progress on reintegration and recommend an enhanced and prolonged reintegration plan was put in place.
63. On 17 January 2024, the Council decided Y’s school was a suitable school placement for Y and named this in Y’s final EHC Plan on 19 January 2024.

Analysis

64. It is not the role of the Ombudsman to investigate the actions of a school. I cannot investigate the actions of the school about the part-time timetable it put in place or the appropriateness of Y’s education until the Council was made aware of the situation.
65. Y stopped attending school entirely on 21 February 2023. While the Council was made aware of attendance issues before this date, this was simply to advise a part-time timetable was in place and that plans were in place to request an early EHC Plan. I cannot find the Council at fault for failing to provide education for Y before it was made aware that Y was not attending school.
66. The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness or ‘otherwise’, the Council must intervene and make such arrangements itself. The duty arises after a child has missed fifteen days of education either consecutively or cumulatively.
67. When the school contacted the Council on 27 February 2023 and told the Council Y was a consistent school non-attender, it was not clear that Y would be absent for 15 school days. Y had only missed eight cumulative school days since September 2022 at the point of this contact. Attendance through a part-time timetable is not considered a school absence as this is providing education for a child in a manner accessible to that child. I do not find fault with the Council for it failing to provide education for Y in response to this first contact.
68. Following the school’s confirmation that Y was now a consistent non-attender, the Council should have kept Y’s attendance under review. The Council should have checked if Y had returned to school on the fifteenth consecutive day following 21 February 2023; the 13 March 2023. The Council did not do this, this was fault.
69. The Council failed to give any consideration of Y’s lack of attendance at school until 22 May 2023. Namely, the Council failed to consider whether Y’s school was suitable educational provision for Y until 5 July 2023. This was fault.
70. The Ombudsman’s guidance for councils to fulfil their responsibilities to provide education for children who are out of school recommends the Council takes certain actions. A council should consider a child’s individual needs, work with parents to draw up a plan to reintegrate a child into school and choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision.
71. A council does not specifically need to provide alternative provision of education if it considers a child could access education at their school and supports this through a reintegration plan. On 5 July 2023, the Council decided Y could access their education at the school but Y needed a reintegration plan supported by Provider 1. The Council was entitled to reach the decision Y could access education in their school and this is not something the Ombudsman could find it at fault for.
72. The Council took suitable steps to outline a reintegration plan and provide funding to support this reintegration plan from 5 July 2023. The Council kept this reintegration plan under review and provided additional funding until 28 September 2023. I do not find fault with the Council’s actions from 5 July 2023 to 28 September 2023.
73. On 28 September 2023, the Council completed a review of Y’s reintegration plan. The Council acted correctly to review Y’s reintegration plan at this time. However, despite acknowledging the reintegration plan was not working, the Council took no actions to change the reintegration plan or provide extra support for the school or Y. Instead, the Council put the onus of the school to explore what additional alternative provision could be provided for Y. A council should not put responsibility on the school when a child is not engaging with it and should retain control over the reintegration plans to ensure a child is accessing education. This was fault.
74. While the Council held a further meeting for Y’s situation in October 2023, it failed to amend the reintegration plan or put any alternative practices into place to help Y’s reintegration into school. Similarly, the Special Advisory Teacher also advised in December 2023 Y’s reintegration plan needed to be enhanced and prolonged but the Council took no action in response to this. From 28 September 2023 to 19 January 2024 the Council has failed to amend Y’s reintegration plan or ensure a suitable reintegration plan was in place. This was fault. This fault meant Y had no real opportunity to access education through the school as the reintegration plan was not amended to meet their needs.
75. Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision put in place, a child’s individual needs and whether they are in a key academic year.
76. Y received no educational provision for three weeks, from 13 March 2023 to the Easter holiday. Y then received 6 hours at Provider 1 from 18 April 2023 to 5 July 2023 followed by 12 hours at Provider 1 from 28 September 2023 to 19 January 2024. Neither the 6 hours nor 12 hours per week provision at Provider 1 was a suitable replacement for a full-time curriculum in a school.
77. Since Y stopped attending his Section I educational placement detailed in the EHC Plan, the Council should have considered how to secure Y’s provision in an alternative way if it considered Y could no longer access this placement.
78. Taking into consideration Y’s access to education for the Council’s period of fault and the failure of the Council to ensure Y continued to receive the EHC Plan provision, I consider the Council should pay Ms X £3,250 to reflect Y’s lost provision. This is for the time periods 13 March 2023 to 5 July 2023 and 28 September 2023 to 19 January 2024.
79. It is also of note that this time period includes a period when Ms X funded Y's provision through Provider 1. While the Council has provided backdated funding to the school, it has not provided any rebate for the provision Ms X funded. The Council should provide a rebate to Ms X for any of the six hours of provision she paid for with Provider 1 from April 2023 to 5 July 2023. If the Council considers it has already paid Ms X’s school this money it should reclaim any funds from the school as it considers appropriate.

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Agreed action

80. Within one month of the Ombudsman’s final decision the Council should:
• Apologise to Ms X for the delays in production of Y’s EHC Plan and for failing to provide suitable education for Y from 13 March 2023 to 5 July 2023 and 28 September 2023 to 19 January 2024.
• Pay Ms X a payment of £350 for the frustration and uncertainty caused by the Council’s delays in production of Y’s EHC Plan.
• Reimburse Ms X for the cost of the provision she paid for from April 2023 to 5 July 2023 with Provider 1, on receipt of evidence of these costs from Ms X.
• Pay Ms X £3,250 for Y’s missed education from 13 March 2023 to 5 July 2023 and 28 September 2023 to 19 January 2024.
81. The Council should provide us with evidence it has complied with the above.

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Final decision

82. There was fault by the Council. As the Council has agreed to my recommendations I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman