Summary: There was a two-and-a half month delay issuing Y’s final Education, Health and Care Plan, causing a delay in appeal rights. There was delay arranging alternative educational provision for her from April 2023. This caused a loss of alternative educational provision between April and September 2023. There was also a failure to consider Ms X’s request for tuition in January 2023 which caused avoidable uncertainty. The Council will make payments and apologise. It will also finalise and implement its policy about the duty in section 19 of the Education Act 1996.

The complaint

1. Ms X complained the Council:
1. Failed to secure special educational provision In Y’s Education, Health and Care Plan and/or alternative educational provision.
2. Failed to take appropriate action when made aware Y was not able to attend school from October 2022
3. Refused or failed to respond to her request for a personal budget (PB) for Y.
2. Ms X said this caused avoidable distress and loss of educational provision for Y

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The Ombudsman’s role and powers

3. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. We call these ‘premature complaints.’ we may decide to investigate a premature complaint if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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). 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.
7. 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. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).
8. 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)
9. 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

The investigation period

10. I have investigated January to November 2023. Where I have referred to earlier or later events it is for context only or to explain why I have not recommended a particular action for the Council.
11. I have limited my investigation to January to November 2023 because:
• Ms X first complained to us in January 2024, so January 2023 to January 2024 is not a late period. Matters before January 2023 are late and there is no good reason for Ms X’s delay.
• In November 2023, Ms X registered an appeal with the SEND Tribunal in respect of Y’s educational placement and special educational provision. The Tribunal order sets out the dispute: Ms X considers Y should have education other than in a school setting (EOTISC) and the Council considers she requires a placement in a special school. The reason Y was not in education is a consequence of Ms X’s disagreement with the provision in the Plan and the type of placement. This means the Milburn case summarised in paragraph six applies. Y’s non-attendance at school is because of the dispute about the suitability of Y’s placement and in particular, Ms X’s claim that no educational setting is suitable for Y. This means we have no power to investigate Y’s lack of educational provision under Section 19 of the Education Act 1996 or Section 42 Children and Families Act 2014 from November 2023 or recommend a remedy for any injustice after the same date. There may be a loss of education for Y after November 2023 and so injustice which will not be remedied by us, but the courts have confirmed in the Field case this is not a reason for the LGSCO to investigate.

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How I considered this complaint

12. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
13. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

What I found

Relevant law and guidance

14. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections including B (special educational needs), F (special educational provision) and I (educational placement/setting). 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.

15. There is a right of appeal to the SEND Tribunal against a council’s decision not to issue an EHC Plan. Where a parent has appealed this decision and the council informs the Tribunal it will not oppose the appeal, regulations say the council will arrange to make an EHC Plan within five weeks of informing the Tribunal. (SEND Regulations 2014, Reg 45(6))

16. The council has a duty to secure special educational provision (SEP) specified in an EHC Plan for the child or young person. (Children and Families Act section 42)
17. Councils have the power to arrange education and SEN provision to be delivered otherwise than at a school or institution, where it would be inappropriate for a child to attend a school setting. (Children and Families Act 2014, section 61). We call this provision EOTISC. Section I of the child’s EHC Plan is left blank where EOTISC is in place.
18. 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.
19. 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
20. 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.

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.

21. A Personal Budget (PB) is a notional amount of money the council has identified it needs to pay to secure the provision in a child’s EHC Plan. A PB may be taken through a direct payment (DP) which is a monetary payment which is used to secure agreed services in the EHC Plan.
22. A parent may request a personal budget and direct payment when:
• A draft EHC Plan is being prepared or
• The EHC Plan is being reviewed or re-assessed. (Regulation 4, SEN PB Regulations 2014)
23. Where a council refuses to make direct payment it must:
• Inform the child’s parents in writing of its decision, providing the reasons and informing of the right to request a review;
• Carry out a review of its decision, if requested to do so, considering any representations made by the child’s parent;
• Inform the child’s parent in writing of the outcome of the review, giving reasons.

(Special Educational Needs (Personal Budgets) Regulations 2014 regulation 7)

What happened

24. Ms X appealed the Council’s decision not to issue an EHC Plan for Y to the SEND Tribunal in December 2022.
25. Ms X emailed the Council at the start of January 2023. She said Y could not attend school and required a part-time timetable. She asked for 12 hours a week of tuition. She asked the Council to commission a tutor. An officer from the SEND team replied saying Ms X would need to discuss this with Y’s school.
26. A psychiatrist wrote a letter to the Council at the end of April 2023 saying Y was currently unfit to attend a mainstream school due to her mental state. The letter went on to say she had not attended school since the autumn term due to high levels of anxiety and heightened sensory processing.
27. An internal email from the Education Welfare Team (EWT) in May said Y’s school had recorded Y’s absences as illness and the Council had seen attendance data up to February 2023. The EWT were going to contact school to discuss Y’s attendance. I have not been given any records of contact between school and the EWT following the internal email.
28. The EWT and school’s headteacher exchanged emails in the middle of June. The plan was for tuition to be commissioned. The EWT said Ms X had engaged a provider for Y and she was attending some educational provision in small groups.
29. Records indicate the Council conceded the SEND Tribunal appeal on 23 June 2023 and decided to issue an EHC Plan with a draft EHC Plan due by 28 July.
30. Ms X emailed the SEND team at the start of July. She said school had offered Y tuition and wanted to know when it would start.
31. The Council sent Y‘s draft EHC Plan to Ms X on 21 August 2023. She said she wanted a placement at Hurst Lodge for Y.
32. The Council’s funding panel considered Y’s case at the end of August and decided she required a mainstream school with 24 hours a week of funding.
33. The Council consulted with Y’s existing school and with Ms X’s preferred placement on 29 August. Y’s existing school declined saying it could not meet her needs, and there was no provision to reintegrate her.
34. Ms X chased the Council for Y’s final EHC Plan at the start of October. She requested two other placements in the middle of October. She also said she no longer wanted the placement she had told the Council about earlier. Ms X asked the Council for an update on her request for tuition twice in October.
35. The Council issued Y’s final EHC Plan in November 2023. Section I said Y needed a mainstream setting, but with no named placement. Ms X appealed Sections B, F and I to the SEND Tribunal.
36. Ms X complained to the Council in November 2023 with no response. She contacted us in January 2024 and we advised Ms X her complaint was premature. Ms X contacted us again in March saying she still hadn’t received a response. The Council told us it would issue a response in the first week of April. We told Ms X to wait for this response.
37. Ms X contacted us again at the end of April 2024 saying she had still not received a response from the Council. The Council accepted it had not provided a response and said it needed until the end of May.

The Council’s responses to the complaint

38. The Council issued a stage one response in May 2024, apologising for the delay. This said:
• Y was on School A’s roll until November 2023
• Her request for an EHC needs assessment and the Educational Psychology report said Y had struggled to attend school since Year 1 and could be a reluctant attender. The Council acknowledged Y may have had several periods of absence, but there was no evidence to confirm it had a Section 19 duty in 2022
• The Education Welfare Service were not made aware of any problems with Y’s attendance until May 2023. Records confirmed Y was signed off as medically unfit on 27 April. Where children are medically unfit, the Council commissions College F to provide education. The Council would not make retrospective payments for tuition a parent had funded.
• Ms X requested a PB in August 2023 and her request was declined. Parents have a right to request a PB when an EHC Plan has been agreed. The local authority must consider the request and if not agreed, then the parent should receive a response with reasons. There is no record of a formal consideration, which was fault. The Council was sorry for the distress caused.
• Her preferred school (Hurst Lodge) said it could meet Y’s needs and offered Y a place. Ms X then changed her mind. The Council did not proceed with this placement in the interest of working with her. She then appealed to the Tribunal.
• The Council accepted fault from November 2023 until March 2024 in the failure to secure SEP in Section F and offered a payment to reflect loss of provision for this period.
• From March 2024, the Council reconsidered the request for a PB and agreed a PB for therapies and 15 hours of tuition while the Tribunal is ongoing
• It was sorry for not communicating with her about consultations with placements. It had consulted with all the placements she had suggested and had one offer, which she said she did not wish to pursue. A manager will chase up outstanding responses and review to see if there are other settings which the Council should consult.
39. We decided Ms X’s complaint was still premature at the start of July 2024 because the Council told us she had not asked for a stage two response. We advised her to contact the Council and request a stage two response.
40. Ms X contacted us again in October 2024. She said we were allowing the Council too much time to complete the complaint procedure. She said she had tried to escalate her complaint with the Council. We told her to complete stage two. Ms X went back to the Council.
41. The Council’s stage two response in November 2024 reviewed Ms X’s complaint and reached the same findings and conclusions as in stage one.
42. Ms X complained to us again in March 2025. We decided to investigate.
43. The Council told us it did not have a section 19 policy at the time, but it is devising one at the moment.

Findings

Failed to secure special educational provision In Y’s Education, Health and Care Plan

44. The Council should have issued Y’s final EHC Plan within five weeks of informing the Tribunal it had conceded Ms X’s appeal. The records indicate the Council conceded the appeal in the last week of June 2023. The final Plan was therefore due around the first week of September 2023. The Council had all the advice and information it needed to issue Y’s final Plan and so it could have easily completed the process within five weeks to meet the September deadline. Yet the Council took till the last week in November 2023 to finalise the Plan. The delay of two and a half months was fault causing a delay in appeal rights, but no loss of special educational provision because Y was not attending school (although still on the roll until November) and so she would likely not have accessed the special educational provision had the EHC Plan been issued on time.

Failed to take appropriate action when made aware Y was not able to attend school

45. The Council said in its complaint response that it had no knowledge of attendance issues until May 2023. The response was incorrect because Ms X had said Y was not attending school in an email in January 2023.
46. The Council told Ms X in January 2023 she needed to liaise with Y’s school to arrange tuition. This was fault. The Council should have considered whether it had a duty under section 19 of the Education Act 1996 and informed Ms X of its decision. It should have liaised with Y’s school and sought medical advice if needed and decided whether Y required alternative educational provision or a part-time timetable or a reintegration plan. The Council took no action in response to Ms X’s email in January and this was fault. This has caused Ms X uncertainty about what the outcome might have been had the Council considered the matter properly and followed the steps set out in our focus report as I have summarised in paragraphs 19 and 20.
47. In April 2023, the Council received a letter from Y’s psychiatrist about her fitness to attend school. The Council’s EWS consulted with school after receiving this letter and in June, the intention was for tuition to be commissioned; however neither Y’s school nor the Council arranged tuition. There was further drift and inaction with Ms X needing to chase the Council for progress several times. The lack of action meant Y remained out of education longer than should have been the case. She has a loss of alternative educational provision for the summer term of 2023.

Refused or failed to respond to her request for a personal budget (PB) for Y

48. The Council accepted it was at fault in its response to Ms X’s complaint. It apologised. the Council should have given Ms X a written decision with reasons for refusing her request and of her right to request a review. This caused Ms X avoidable frustration and a loss of opportunity to have her request reconsidered within a reasonable timeframe. The Council later agreed a PB for Y and this remedies the injustice.

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Agreed Action

49. Within one month of my final decision the Council will take the following action:
• Issue a written apology. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended.
• Make a payment of £250 to reflect the avoidable distress and uncertainty caused by the delay in appeal rights and by the Council’s failure to consider whether a section 19 duty applied between January and March 2023
• Make a payment of £1200 to reflect Y’s loss of alternative educational provision (tuition) between April and September 2023. I have taken into account this was not an exam period for Y and she was likely not well enough to manage full-time educational provision.
50. Within three months, the Council will finalise and implement its section 19 policy and procedure.
51. The Council should provide us with evidence it has complied with the above actions.

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Decision

52. I find fault causing injustice. The Council will take action to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman