Summary: Miss X complained the Council failed to secure suitable alternative education provision for her child, Y, for around 12 months. We have found the Council at fault for failing to consider its section 19 duty at the correct time and for failing to secure suitable education provision. We have also found the Council at fault for its communication and complaint handling. We have made recommendations to remedy the injustice this caused. We have found the Council at fault for procedural delays when completing an annual review of Y’s EHC Plan. However, this fault did not cause an injustice. We recommend the Council act to improve its services.

The complaint

1. Miss X complained the Council left her child, referred to in this statement as Y, without suitable education provision for over a year. Miss X also complained the Council communicated poorly, failing to respond to correspondence or messages about her concerns.
2. Miss X said the Council’s faults affected Y’s educational attainment. She said she had to leave employment to care for Y and ensure he received an education. She said the situation caused avoidable distress, frustration and uncertainty.

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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. 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)

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How I considered this complaint

5. I considered information Miss X provided about the complaint.
6. I considered information the Council provided about the complaint.
7. Both Miss X and the Council were able to comment on a draft version of this decision. I considered any comments received before making a final decision.
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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Relevant legislation, guidance and policy

Education, Health and Care (EHC) Plans

9. 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 the council can do this.
10. 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

11. 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.
12. 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)
13. Where the decision is to amend the existing EHC Plan, the Courts have found councils must notify the parent of the decision to amend, and what the proposed changes are, within four weeks of the annual review meeting. The council must then issue any final amended plan within eight weeks of this Amendment Notice. (R, (L, M and P) v Devon County Council). The amended final plan should therefore be issued within 12 weeks of a review meeting.

Alternative provision

14. 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.
15. 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)
16. 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)
17. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
18. 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)
19. 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;
20. 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.

Council complaint procedure

21. The Council operates a two-stage complaints procedure:
• At stage one, the Council will acknowledge a complaint within five working days of receipt and will respond within 20 working days. It will let complainants know if it cannot meet this deadline.
• At stage two, the Council will provide its response within 20 working days of the date the complainant requested escalation.

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What I found

Summary of key events

22. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “analysis” section of this decision statement.
23. In June 2022, the Council issued Y’s final amended EHC Plan. This set out Y’s special educational needs and the arrangements that should be made to meet those needs. Y’s EHC Plan also named School Z as the education setting from the beginning of the 2022/23 academic year.
24. I understand Y stopped regularly attending School Z during the first academic term and alternative provision placements were sought. In December 2022, Miss X said it was agreed Y would begin attending an alternative provision setting (AP1) two days per week from January 2023.
25. On 8 March 2023, there was an annual review of Y’s EHC Plan. The paperwork from this review showed:
1. Y was not attending School Z due to a behavioural incident.
2. Y was attending AP1 twice a week and engaging well.
3. It was noted Y would need to develop his English and mathematics skills to progress over time.
4. There was a commitment made to increasing the education offer available to Y.
26. In March 2023, School Z increased Y’s attendance at AP1 to three times per week. Miss X told the Ombudsman another alternative provision setting (AP2) was introduced in May 2023. Y’s educational offer was split across both settings, which were mainly practical educational placements.
27. In June 2023, Miss X contacted School Z and Y’s then-caseworker to ask about increasing Y’s education provision. School Z later contacted Miss X to arrange discussions around exploring a more academic placement for Y.
28. On 7 December 2023, the Council and School Z met with Miss X. The record of this meeting showed:
1. Y had struggled attending School Z and measures to increase Y’s attendance had failed. This had led to alternative provision being sought.
2. There had been a lack of English and mathematics provision for Y for some time.
3. Y had recently stopped attending AP1 due to an incident in the setting.
4. Those present agreed to review Y’s EHC Plan later in the month.
29. On 12 December 2023, Miss X complained to the Council. She complained about the time taken to address her concerns about the Council’s communication. She said the meeting confirmed Y’s education was not suitable, and asked why School Z and the Council had not identified this sooner. Miss X sought a resolution, including improvements to Y’s education and compensation. She said Y’s educational provision was increasing slowly towards around 16 hours per week at that point.
30. On 13 December 2023, there was a review of Y’s EHC Plan. The review reiterated much of what had been confirmed at the recent meeting. The paperwork showed those present agreed Y needed to start accessing academic tuition. They agreed to find out whether the alternative provision settings in place could meet this need. The paperwork also noted the relationship between Miss X, Y and School Z had broken down, with School Z being potentially unable to meet Y’s needs.
31. In January 2024, the Council wrote to Miss X to say its response to her complaint would be delayed. Miss X escalated her complaint to the next stage of the Council’s complaints procedure without receiving a stage one complaint response.
32. Later in January, there was an emergency review of Y’s EHC Plan. Paperwork from this review showed:
1. Y had attended School Z for 44 days after beginning in September 2022. Y had attended alternative provision settings for most of the time thereafter. Miss X and School Z agreed School Z could not meet Y’s needs.
2. Y’s placement at AP1 had broken down, due to behavioural incidents. AP2 had provided some additional tuition. More hours at AP2 were planned from February 2024 and there were plans to increase Y’s academic provision.
3. Miss X was concerned about Y’s ability to read and write, and how this would affect Y’s educational attainment. School Z highlighted Y’s SEN needs in this area.
4. School Z set out the actions it was taking in response to Miss X’s concerns about communication. School Z said it could not comment for the Council, which had declined to attend the early review.
33. In February 2024, the Council responded to Miss X’s stage two complaint:
1. The Council said Miss X’s complaint was about its handling of Y’s EHC Plan support and poor communication. The Council apologised for its poor communication. It also apologised for not responding to Miss X’s stage one complaint within its procedural timescales.
2. The Council said a significant increase in demand for its services over the previous year had led to delays. It also noted staff turnover, which affected consistent communication. It said the quality of its service should now improve.
3. The Council said it was proceeding with a review of Y’s EHC Plan and confirmed details of the officers overseeing the matter.
34. In March 2024, the Council considered Y’s case at a review panel. The Council confirmed it had agreed to amend the EHC Plan and create a bespoke education package for Y in the short term. The Council agreed Miss X’s request for a budget to arrange education for a short period, while the Council sought a suitable full-time replacement. Y also continued to attend AP2 on increased hours.
35. The Council told the Ombudsman it planned to review Y’s EHC Plan in May 2024. It intended to review Y’s needs and aspirations, and agree suitable settings for consultation. It said it wanted to identify a suitable long-term placement that would begin in September 2024.
36. In August 2024, the Council issued Y’s amended final EHC Plan, providing Y with a right to appeal to the SEND Tribunal.

Analysis

Communication and education provision

37. The Council told me it had no record of Miss X raising concerns about Y’s education provision until Miss X made her complaint in December 2023. Miss X made this complaint after the meeting held on 7 December 2023. I understand this meeting highlighted the provision in place for Y was not meeting Y’s needs, leading Miss X to make her formal complaint.
38. However, on a balance of probabilities, I consider it is likely Miss X raised concerns about Y’s provision before submitting her complaint and experienced inconsistent communication when trying to engage with the Council. I believe this to be the case because:
• the Council told the Ombudsman Miss X’s caseworker had since left the authority and it could not access their records to assess communication exchanges. However, Miss X provided the Ombudsman with copies of correspondence sent to School Z and Y’s then-caseworker in June 2023, expressing concerns about gaps in Y’s education provision and seeking an increase. I have seen evidence School Z responded to this, but no evidence the Council did so.
• it would have been necessary for the Council to communicate with Miss X about her concerns, or have notice of them, before the meeting in December 2023, to arrange the meeting itself.
• in its final complaint response, the Council accepted there had been delays in communicating with Miss X generally, citing unprecedented service demand and staffing pressures as factors.
39. I have therefore found the Council at fault for its inconsistent communication. This caused Miss X avoidable frustration, which is an injustice. I have recommended the Council act to remedy this injustice.
40. The Council told me School Z arranged Y’s alternative provision. While the Council can delegate making these arrangements, the statutory duty to provide a suitable education remains with the Council.
41. The Council said its records showed it was unaware Y had stopped attending School Z until it met with Miss X and School Z on 7 December 2023. However, the annual review paperwork submitted to the Council in March 2023 states Y was already attending alternative provision at that point. Miss X provided the Ombudsman with records showing Y began AP1 in January 2023 for two days a week, increased to three days from March 2023.
42. I therefore consider the Council was aware from at least March 2023 that Y had stopped attending School Z and started attending AP1. At that point, the Council should have considered whether it was meeting its section 19 duty in respect of the education offer available to Y. The Council did not consider this question at the time. I have found the Council at fault for this.
43. Had the Council considered this question, I believe it would have decided, on a balance of probabilities, that it needed to intervene because the provision in place contained no core subjects and was not suitable for Y’s needs. I believe this is the case because this is the same decision the Council later reached in December 2023, when faced with the same set of circumstances.
44. The Council said following the meeting in December 2023, it agreed School Z would lead on securing suitable education, including this core provision. As noted previously, the statutory duty for securing suitable provision remains with the Council.
45. I understand there were no changes to provision and Y then came off roll at School Z in early 2024. This means between March 2023 and February 2024, the Council had notice Y was not receiving suitable education provision as of January 2023, but did not act to address this. This failure to act is fault, which caused Y injustice in the form of missed education provision. I have recommended the Council act to remedy this.
46. The Council put in place alternative provision in February 2024. It subsequently agreed a personal budget with Miss X that provided Y with a suitable education offer, while it sought longer term arrangements. The Council’s actions at this point show it duly considered its section 19 duty. I have not found the Council at fault for its actions from this point.

Annual review

47. Paragraphs 11-13 set out the timescales for conducting an annual review, confirming a formal decision, and issuing an amended final plan.
48. The Council held a review of Y’s EHC Plan on 13 December 2023. It should have confirmed a decision to amend the plan by 15 January 2024 and issued an amended final EHC Plan by 11 March 2024. The Council did not confirm a decision to amend, and did not issue an amended EHC Plan until 7 August 2024. This is a delay of around 21 weeks. I have found the Council at fault for not confirming its decision, thereby not completing the review procedure, and the delay in issuing an amended final plan.
49. However, these faults did not cause Miss X or Y an injustice. The Council had agreed to amend the EHC Plan at annual review, as it no longer met Y’s needs. This was the outcome Miss X sought. Failure to confirm its decision did not therefore deprive Miss X of her right to appeal an adverse decision. The Council had also put alternative provision in place while it amended the EHC Plan. There was therefore no lost provision for Y because of the Council’s delay in issuing the amended final plan.

Complaint handling

50. In its stage two complaint response, the Council accepted it had not responded to Miss X’s stage one complaint. It also accepted a general delay in complaints handling. I recognise the Council accepted these issues. I have found the Council at fault for its complaints handling. This fault caused Miss X avoidable time and trouble pursuing a resolution to her complaint, which is an injustice.
51. I note the Council told Miss X in January 2024 there would be a delay in its response. I also note the Council provided a full apology for the delay in its final complaint response. I consider the Council’s apology constitutes a suitable remedy for the faults in its complaint handling. I have not therefore made any further recommendations on this point.

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Agreed action

52. I have considered the Ombudsman’s Guidance on Remedies when making the following recommendations. In particular, I have considered:
• Y is a child with SEN and an EHC Plan, who is vulnerable. Y received some provision throughout the entire period in question, which met some of his educational and support needs, though the provision was incomplete as it lacked in core subjects. It is likely that future provision will be able to offset some of the provision Y lost.
53. Within four weeks of the final decision being issued, the Council has agreed to:
1. Provide a written apology to Miss X and Y for the faults and injustice identified in this statement. The Council should have regard to the Ombudsman’s guidance on “Making an effective apology", set out in our Guidance on Remedies document.
2. Remind relevant officers of the Council’s responsibilities under its section 19 duty and share a copy of the Ombudsman’s focus report “Out of school, out of sight?” with the reminder.
3. Remind relevant officers of the statutory timescales for completing annual reviews of EHC Plans, including the need to confirm the Council’s decision in writing and provide appropriate appeal rights where required.
4. Pay Miss X £150 in recognition of the avoidable frustration she experienced because of the Council’s inconsistent communication.
5. Pay a further £3670 in recognition of Y’s unsuitable provision. This is based on a figure of £1100 per academic term, for three academic terms and one month between January 2023 and January 2024.
54. The Council should provide us with evidence it has complied with the above actions.

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Final decision

55. I have completed my investigation with a finding of fault causing injustice. I have made recommendations to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman