Summary: Ms X complained that the Council failed to issue her son’s Education Health and Care Plan or provide a suitable education for him between Summer 2022 and March 2024. We found there was significant delay by the Council and during 2023/24 the Council did not provide a suitable education. We recommended an apology and payment to recognise the distress caused and the education that was lost.

The complaint

1. Ms X complains there was a failure to identify and meet her son’s needs while he was attending mainstream schools in 2020 and 2021.
2. Following a review of her son’s Education Health and Care Plan (EHC Plan) and a notice to amend the EHC Plan in September 2022 there was a failure to update and issue a revised EHC Plan until March 2024.
3. Ms X complains that her son has been out of school for over two years and received no education. She also complained the Council had failed to communicate and update them properly and there was a lack of accountability for the situation.
4. Ms X stated the lack of education and school place had a detrimental impact on her son’s mental health and affected his ability to attain qualifications.

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The Ombudsman’s role and powers

5. 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)
6. 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)
7. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
8. If we are satisfied with a council’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 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

10. We have not investigated events back to 2020. This is because we generally expect complaints to be made to us within 12 months of someone knowing of the issues subject to complaint. I have exercised discretion to consider the complaint from July 2022. This is when the Council reviewed Ms X’s son’s Education Health and Care Plan.
11. Ms X’s complaint also included concerns about how her son’s school acted. We do not have jurisdiction to consider complaints about schools, so these are not issues we can consider.

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How I considered this complaint

12. I considered Ms X’s complaint and the information she provided. I asked the Council for information and considered its response to the complaint.
13. Ms 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

Special Educational Needs (SEN) Statutory Guidance

14. Statutory guidance states that councils must arrange for an EHC Plan to be reviewed at least once a year to make sure it is 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 process is only complete when a council issues a decision about the review.
15. 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. 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) 
16. 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 paragraph 9.194).  Case law sets out this should happen within four weeks of the date of the review meeting. Councils should then issue any final amended plan within 8 weeks of the amendment notice. Therefore, a final plan must be issued within 12 weeks of the review meeting.

Education Act 1996 & Alternative Education guidance

17. The law says that 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. This duty 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)
18. 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)

What Happened

19. Ms X complains about delay in reviewing her son’s Education Health and Care Plan (EHC plan). We have referred to her son as Y in this document.
20. The Council carried out an annual review of Y’s EHC Plan in July 2022. It agreed that Y’s needs had changed and it would update the plan. Y’s existing EHC plan named School A. The review indicated the possibility that his placement needed to change. The review document stated Y was struggling to cope with the long journey to School A amongst other things.
21. The Council issued an amendment notice on 12 September 2022. The Council told us Y remained on roll at School A at that time. It considered the placement at School A was still available to Y and says it was aware that the school was providing Y with an alternative education which it considered appropriate.
22. The case notes the Council provided between September and November 2022 refer to weekly welfare visits being arranged. The records showed that an alternative education provider was meeting Y each week to build trust and engagement. They stated School A could send work home but Y would not do it.
23. In January 2023 there was evidence that Y was engaging and his social worker asked the school to take the opportunity to work with him and put a suitable education package in place. In an email to Ms X in February 2024 the Council noted School A still had funding for Y’s education, but it also appeared to contradict this by stating the school had no resources to fund the continuation of the alternative education provision. The Council acknowledged to Ms X that Y’s education had been overlooked and an officer apologised. The officer also noted there had been a lack of attendance at meetings and a lack of communication with Y’s parents which was unacceptable.
24. In February, Y’s father reiterated that Y was acknowledging his behavioural issues, turning a corner and ready to return to school.
25. The case notes the Council sent to us appear to record another annual review of Y’s EHC Plan in March 2023. It stated Y’s parents hadn’t attended as they did not consider it appropriate given the outcome of the July 2022 review had still not been actioned, no EHC Plan had been issued and a new school had been found.
26. Multi-disciplinary meetings were held at various points in early 2023. Youth justice officers highlighted the need for an increase in tuition and more engagement work from the alternative education provider. As at April 2023 they noted Y was continuing to engage well.
27. The Council sent us a copy of an EHC Plan review document dated 19 April 2023. The Council issued further amendment notices on 25 April and 12 May 2023.
28. However, in August 2023 the Council told Y’s parents that it could not source a suitable placement at that time. They noted they needed to look to increase provision in the meantime to help him engage in education and prepare for Post‑16 placements. The Council indicated it had sent consultations and provision for the coming academic year would be discussed with School A.
29. At the end of September, the Council apologised for a delay in making contact again. In November at an SEN meeting, there was again discussion about increasing tuition. This was only put to a panel at the end of January 2024.
30. As at March 2024 the Council began arranging additional tuition and support. The Council issued a revised EHC Plan on 28 March 2024. It named Y’s previous school, School A.

What should have happened

EHC Plan Timescales

31. The Council should issue an EHC plan amendment notice within four weeks of an annual review meeting. It took the Council nine weeks to do this after the July 2022 review, five weeks longer than the statutory timescales. This delay represents fault.
32. A final, amended EHC Plan should be issued within 12 weeks of a review meeting. There was very significant delay in finalising and issuing Y’s revised EHC Plan. The Council did not do this until March 2024.
33. I understand that the Council had consulted a number of schools within this period and was unsuccessful in finding a placement for Y. However, the delay was lengthy and this too was fault. The delay had a significant impact.

Y’s Education

34. When a child is out of school, a council has a duty to ensure that child receives a suitable full-time education unless this would not be in the child’s best interests or they are unable to take up an education for health reasons.
35. Although Y remained on the roll of School A while the Council was reviewing his EHC Plan between July 2022 and March 2023, I found on balance that the placement at School A was not available and accessible to Y. I say this because the review in July 2022 recommended that a new placement was needed. It set out various issues with the school, also highlighting issues with the length of the journey. It stated Y had refused to return having lost trust in staff.
36. Although I found the placement was not accessible and available to Y, the evidence we have seen indicates that Y was not able to engage in education between July and December 2022. However, it is evident that Y was engaging, actively seeking an education and wished to return to school from January 2023. The evidence provided by the Council recorded delays in moving Y’s case forward and a lack of meaningful provision from January 2023. Y was initially only being provided with one session per week with an alternative education provider and despite Y’s parents and a number of professionals seeking an increase in this provision, the introduction of tutoring and a school placement, provision was not increased until March 2024.
37. As a result, I found that Y missed out on a suitable education for four terms between January 2023 and March 2024. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. I have based Y’s remedy on £1500 per term.
38. We have only investigated the events of the complaint up to March 2024. A remedy has only been agreed for this period as a result. This is because a new EHC Plan was issued at that point. When an EHC plan is issued, appeal rights exist to challenge the content (including the named placement).
39. The courts have established that if someone has appealed to a Tribunal, 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).
40. In Y’s case, this means that because Y’s non-attendance at School A, named in his plan, was linked to, or is a consequence of, an issue that can be appealed (the naming of School A), we cannot investigate a lack of special educational provision, or alternative educational provision that may stem from that issue after the appeal rights became available.
41. We have made recent recommendations to the Council regarding improvement to its SEN processes and procedures around EHC Plan timescales and alternative education provision. So, I have not made service improvement recommendations as a result of this investigation.

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Agreed action

42. Within four weeks of our final decision:
43. The Council agreed to apologise to Y and his parents for the significant delay in issuing his revised EHC Plan, for the lack of communication and for the failure to provide a suitable alternative education while Y was out of school in 2023/24. The apology should adhere to our guidance on making effective apologies. This can be found on our website, within our Guidance on Remedy here.
44. To recognise the distress and time and trouble that Ms X spent pursuing Y’s EHC Plan and her complaint the Council agreed to pay her £500.
45. To recognise the loss of education Y had between January 2023 and March 2024, the Council agreed to pay Ms X, for Y, £6000.
46. The Council should provide us with evidence it has complied with the above actions.

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Final decision

47. There was fault by the Council that caused injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman