Summary: Ms X complained the Council failed to provide suitable educational provision in line with her child’s Education, Health and Care Plan since September 2023. Ms X also complained the Council failed to provide any education for child from September 2023 to December 2023. Ms X also complained the Council failed to meet complaint timescales or communicate the outcome of her child’s Education, Health and Care Plan review with her. We did not find fault with the provision of Ms X’s child’s Education, Health and Care Plan or their general education. However, we found fault with the Council failing to meet the statutory timescales in completing Ms X’s child’s Education, Health and Care Plan review. We also found fault with delays by the Council in providing complaint responses and misinformation within the complaint responses. The Council agreed to apologise to Ms X and pay her £250 for the frustration and inconvenience caused through the Council’s fault.

The complaint

1. Ms X complained the Council failed to provide suitable educational provision in line with her child’s Education, Health and Care Plan or provide any education from September 2023 to December 2023.
2. Ms X also complained the Council failed to meet complaint timescales, failed to suitability communicate with her or the school and failed to communicate the outcome of her child’s Education, Health and Care Plan review.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. 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)
6. 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

7. I have investigated Ms X’s complaint about the lack of suitable education and educational provision from September 2022 to 4 June 2024.
8. I have not investigated matters since 4 June 2024 for two reasons. The Local Government and Social Care Ombudsman (the Ombudsman) must allow a council opportunity to consider and respond to a complaint before we can investigate it. Since the Ombudsman agreed to investigate Ms X’s complaint on 8 May 2024, the Council has not had suitable opportunity to respond to a complaint about such matters itself since this point.
9. The second reason is the Council produced Ms X’s child’s Final Education and Health Care Plan on 4 June 2024. Ms X gained an appeal right to the Special Education Needs and Disability (SEND) Tribunal on this date about the contents of Y’s Education and Health Care Plan, including her child’s educational placement.
10. Should Ms X have any concerns about the content of the Education and Health Care Plan, including her child’s educational placement, she would need to approach the SEND Tribunal as the correct body to consider this matter.

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How I considered this complaint

11. 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.
12. Both Ms X and the Council had opportunity to comment on my draft decision. I considered Ms X’s comments before making my final decision.

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What I found

What happened

13. On 30 June 2023, the Council produced a Final Education, Health and Care (EHC) Plan for her child, who I shall refer to as Y. The EHC Plan detailed School 1 as Y’s educational placement in Section I. The EHC Plan also detailed the educational provision Y should receive in Section F, this included:
• Providing opportunities for small group activities with the view to increasing to larger groups. These small group sessions should look to improve social skills and similar.
• Twice weekly one-to-one or small group sessions for improving motor skills.
• Daily access to interventions and support to develop foundation literacy and numeracy skills, delivered through regular small group and/or one-to-one sessions. A Teaching Assistant or similar should deliver this provision.
• A differentiated curriculum.
• A consistent and predictable routine.
• Access to Lego Therapy.
• Access to adult support at break and lunch times.
• Access to a quiet and calming space.
• Learning staff to meet with parents to draw up an individual learning plan.
• Have access to resources including a wobble cushion, pop-up tent for safe space and a weighted blanket.
14. On 8 September 2023 and 19 September 2023, School 1 spoke with Ms X about how best to meet Y’s needs from the EHC Plan. School 1 created an individual learning plan including use of weekly Lego therapy to develop social skills, the Jump Ahead intervention to develop motor skills twice weekly and input for emotional and social development. This plan also included reference to opportunities to work in small groups.
15. On 21 September 2023, School 1 sent Y home from school but did not formally exclude Y.
16. Ms X complained to the Council School 1 was failing to provide Y’s EHC Plan provision on 22 September 2023. Ms X said Y was not getting one-to-one provision or access to suitable resources. Ms X also complained School 1 had excluded Y.
17. In October 2023, the Council contacted School 1 about Y’s EHC Plan provision. School 1 detailed how it was meeting Y’s EHC Plan provision and detailed the resources it had made available to Y. School 1 explained it was looking to introduce the Lego therapy after the half-term break for Y.
18. On 1 November 2023, the Council wrote to Ms X to provide a Stage 1 complaint response. The Council said it had been in contact with School 1 and confirmed provision was in place. Ms X responded to the Council to advise she did not consider support from the EHC Plan was in place and asked for consideration of her complaint at the next stage.
19. On 21 November 2023, School 1 contacted the Council and advised it had arranged an emergency annual review for Y for 13 December 2023. The Council contacted School 1 to discuss any support it could provide and advised School 1 to put in a request for extra funding.
20. On 23 November 2023, the Council provided a Stage 2 complaint response to Ms X. The Council said it was School 1’s responsibility to ensure provision detailed in Y’s EHC Plan was met and not the Council’s place to mediate on such matters. The Council said it would discuss this matter with School 1 further.
21. Following submission of an extra funding request by School 1, the Council agreed to this on 28 November 2023.
22. On 1 December 2023, Y started to attend a Farm Provider once a week to supplement education at school.
23. School 1 agreed a reduced timetable for Y to start from January 2024. School 1 noted the reason for this reduced timetable was because Y found school life too demanding and it hoped a reduced timetable would improve Y’s access to education. School 1 told the Council about this reduced timetable.
24. On 13 December 2023, School 1 held an emergency annual review for Y’s EHC Plan. The Council did not attend this meeting.
25. Y started the reduced timetable on 4 January 2024. This reduced timetable had Y accessing school four days a week for 4 hours each day and a full day at the Farm Provider.
26. On 5 January 2024, School 1 contacted the Council to seek extra funding for one hour’s tuition every afternoon for Y at home to supplement the reduced timetable.
27. On 11 January 2024, the Council responded to School 1 to ask for the annual review paperwork so it could decide whether tuition was needed for Y alongside the reduced timetable.
28. School 1 sent the annual review paperwork to the Council on 4 February 2024. Y’s school asked for an update on whether it could get funding for a tutor for Y on 7 February 2024.
29. In February 2024, the Council liaised with School 1 about Y’s access to education. School 1 told the Council it taught Y on a one-to-one or one-to-two basis and believed Y needed a specialist educational setting. The Council advised it would not approve additional funding for Y’s tutor because School 1 had already received funding for a full-time Teaching Assistant for Y, but Y was only receiving 4 hours education each day across four days. The Council said School 1 should use the funding for the Teaching Assistant for the hours Y was not receiving education to fund tuition for Y.
30. On 4 March 2024, Ms X complained to the Council about its decision not to fund Y’s tuition. Ms X said the bespoke timetable and Farm Provider was “very good” for Y but Y was not getting suitable full-time education.
31. On 22 March 2024, the Council decided to amend Y’s EHC Plan and wrote to Ms X to confirm this. The Council did not provide a draft copy of the EHC Plan at this time with the proposed amendments.
32. On 4 April 2023, the Council asked School 1 for evidence of how it was spending Y’s funding and why this could not cover Y’s tuition. School 1 responded to the Council to advise Ms X had now put in place some tuition for Y which the school had agreed to reimburse out of the funding already provided. School 1 said it would contact again if the situation changed and when it believed Y could access more provision.
33. The Council issued a Draft EHC Plan for Y on 12 April 2024. Following comments from Ms X, the Council issued revised Draft EHC Plans on 14 May 2024 and 21 May 2024.
34. On 4 June 2024, the Council issued a Final EHC Plan for Y. The Final EHC Plan named School 1 as Y’s educational placement in Section I.
35. Y stopped attending school on 4 June 2024 but the Council was not told about it on this date.

EHC Plans

Rules and regulations

36. An Education, Health and Care Plan (EHC Plan) is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care.
37. Once the Council completes the EHCP 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.
38. Councils should ensure an annual review of the child's EHC Plan is carried out within 12 months of the issue of the original plan or the completion of the last annual review. The purpose of the annual review is to consider whether the special educational support and educational placement is still appropriate. The annual review is not complete until the council has decided to either maintain the Plan, cease the Plan or amend the Plan.
39. A person may request an annual review sooner which can prompt an emergency annual review of a child’s EHC Plan.
40. 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. (s20 (10) Special Educational Needs and Disability Regulations 2014)
41. 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. (s22 (1) & (2) Special Educational Needs and Disability Regulations 2014)
42. The Special Educational Needs and Disability Code (the Code) states if a council decides to amend the Plan, it should start the process of amendment “without delay”. (SEN Code para 9.176)
43. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the final amended EHC Plan as soon as practicable and within eight weeks of the date it sent the EHC Plan and proposed amendments to the parents. (s22 (3) & (4) SEND Regulations 2014)
44. 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.
45. The Ombudsman can look at any delay in the assessment and creation of an EHCP as well as any failure by the Council to deliver the provision within an EHCP.

Analysis – Provision

46. A council may delegate who provides a child’s EHC Plan provision to other bodies, such as a school. While it may do this, a council is ultimately responsible for ensuring a child receives the provision detailed in a child’s EHC Plan.
47. It is not the role of the Ombudsman to investigate the actions of a school. I cannot investigate the actions of the school about how exactly it provided Y’s EHC Plan provision. However, I can consider how the Council went about ensuring Y’s school was providing the provision detailed in Y’s EHC Plan.
48. The Council provided funding to Y’s school to meet the full provision detailed in Y’s EHC Plan. School 1 spoke with Ms X about Y’s provision in September 2023 and produced a personalised timetable for Y to ensure it delivered this provision to Y.
49. Following Ms X’s contact with the Council in September 2023, the Council liaised with School 1 who detailed how it was providing the Section F provision in Y’s EHC Plan. The Council had made funding available to School 1 and obtained details of how School 1 was using this funding for Y. The Council took suitable steps to keep oversight over the provision of Y’s EHC Plan. I do not find fault with the Council.
50. Following Ms X’s second complaint in November 2023, the Council held further discussions with School 1 and agreed to provide extra funding to better meet Y’s needs. The Council has considered School 1’s input about what it needs to meet Y’s EHC Plan provisions and agreed to School 1’s request. I do not find fault with the Council.
51. When School 1 submitted the reduced timetable plan to the Council, this included details of how the school would meet Y’s EHC Plan provisions within this reduced capacity. The Council again had oversight of this reduced timetable plan. I again do not find fault with the Council.
52. The Council has provided funding, plus extra funding, to School 1 and delegated responsibility to it to provide Y’s Section F provision. The Council has checked with School 1 on various occasions to ensure it was providing the provisions detailed in Y’s EHC Plan. There is no evidence School 1 has not been fulfilling Y’s EHC Plan. Given the Council has provided the relevant funding and maintained oversight of School 1 providing Y’s EHC Plan provisions, I do not find fault with the Council.

Analysis – Review

53. A person can ask for an emergency annual review of their child’s EHC Plan if they consider there is an urgent need to change the EHC Plan. When Ms X asked School 1 to arrange this it did so and contacted the Council to advise it had arranged this for 13 December 2023. The Council was aware of the proposed emergency annual review meeting and agreed to this going ahead. The Council was not obliged to attend the emergency annual review and chose not to. I would not find the Council at fault for this.
54. Following an annual review meeting, a council has four weeks to decide whether to amend an EHC Plan. This meant the Council had until 10 January 2024 to decide whether to amend Y’s EHC Plan. The Council did not receive the annual review paperwork from School 1 so could not make any decision by this date. I cannot investigate the actions of Y’s school so cannot explain why School 1 did not submit this paperwork sooner.
55. While School 1 failed to submit the paperwork, which explains the Council’s delay in deciding about whether to amend Y’s EHC Plan, this does not remove the fault by the Council. The Council knew School 1 held an annual review meeting for Y on 13 December 2023 and would have known it needed to decide whether to amend Y’s EHC Plan within four weeks of this. The Council was given opportunity to attend the annual review meeting which would have helped ensure it had the paperwork immediately but it chose not to. While the Council not attending is not fault, the Council would still be at fault for its delays in completing the review process outside the statutory timescale.
56. The Council told Ms X on 22 March 2024 it had decided to amend Y’s EHC Plan. The Council acted correctly to tell Ms X about its decision but failed to provide a copy of the proposed Draft EHC Plan. The Council should have issued this decision by the latest of 10 January 2024 along with the Draft EHC Plan. Failing to meet this timescale was fault.
57. Since the Council decided to amend Y’s EHC Plan, it had 12 weeks from the annual review meeting to issue a revised Final EHC Plan for Y. The Council’s deadline for production of the revised Final EHC Plan was 6 March 2024. The Council failed to issue the Final EHC Plan for Y until 4 June 2024. The Council failed to meet the statutory timescales in producing the Final EHC Plan by three months. This was fault.
58. This fault caused Ms X frustration and inconvenience and delayed her appeal rights the SEND Tribunal.

Alternative Provision of education for children

Rules and regulations

59. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them”. (Education Act 1996, section 19(1))
60. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
61. The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
62. The education provided by a council must be full-time unless a 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)
63. 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 mind? How councils can do more to give children out of school a good education, published in 2016)
64. 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 (with the exception of 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 in coming to decisions;
• consider enforcing attendance where a child has a suitable school place available, and where there is no medical or other reason that prevents them attending;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.
65. Our focus report states local authorities should not assume that schools shoulder the entire responsibility for a child’s education.
66. 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.
67. 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.

Analysis

68. 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 Section 19 duty arises after a child has missed fifteen days of education either consecutively or cumulatively.
69. Throughout Y’s first term from September 2023 to December 2023, Y missed a cumulative 10 days of education because of an inability to attend school. This included general illness and school avoidant behaviour. This prompted School 1 to introduce a reduced timetable for Y from January 2024. Given Y had not missed 15 days of education at this point, there was no duty on the Council to become involved in Y’s education.
70. The Council took suitable steps to be aware of Y’s reduced timetable, as proposed by Y’s school, and to support the introduction of this reduced timetable. The Council deferred to the agreement reached between Y’s school and Ms X in not opposing this reduced timetable. The Council has acted suitably and I would not find fault.
71. Following introduction of Y’s reduced timetable in January 2024, School 1 has only noted three days of absence through illness or an inability for Y to attend school until 4 June 2024. This means from the start of the academic year up to 4 June 2024, Y has not missed enough school to engage the Council’s Section 19 duty. I cannot find fault with the Council for failing to provide alternative provision of education through its Section 19 duty when the threshold for engaging this duty has not been reached.
72. Ms X has also complained the Council failed to provide a suitable full-time education for Y since January 2024. While a council has a general responsibility to provide a full-time education for a child, it also has a responsibility to ensure any education provided to a child is suitable for that child’s needs and ability.
73. School 1 advised the Council in December 2023 that Y could not cope with a full-time education because of Y’s individual needs and the demand full-time education placed on Y. This is the reason for introduction of the reduced timetable. School 1, and by extension the Council, adapted Y’s education to meet Y’s needs and I would not find fault with this. Ms X introduced tuition into Y’s educational package which School 1 reimbursed. School 1 told the Council in April 2024 that it would tell the Council when it considered Y would be able to cope with more educational provision. School 1 did not contact the Council again between April 2024 and 4 June 2024 to advise Y could cope with more education.
74. The Council ensured Y had access to education that Y could cope with. While this may not have been full-time education, this is not something the Ombudsman would find the Council at fault for given the Council considered Y’s individual circumstances.

Complaint handling

Council policy

75. The Council operates a two-stage complaints process. At Stage 1 the Council aims to provide a response within a maximum of 20 working days from receipt of the complaint.
76. A person may request consideration of their complaint at Stage 2 of the Council’s complaints process. The Council aims to provide a response at Stage 2 within 20 working days of receipt of the request.

Analysis

77. Ms X made her first complaint to the Council on 22 September 2023. The Council should have provided its Stage 1 complaint response by 20 October 2023. The Council only provided its complaint response on 1 November 2023. This was 7 days outside the Council’s complaint timescales; this was fault.
78. Ms X sought consideration of her complaint at Stage 2 on 1 November 2023. The Council provided the Stage 2 complaint response within the complaint timescales by providing a response on 23 November 2023. While the Council provided a complaint response within its complaint timescales, it provided misinformation within this complaint response.
79. The Council told Ms X School 1 was responsible for ensuring Y had access to their EHC Plan provision and it was not its place to mediate on such matters. This was incorrect as the Council is ultimately responsible for ensuring delivery of a child’s EHC Plan provision.
80. The Council’s delays and misinformation have caused Ms X frustration and inconvenience.

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Agreed action

81. Within one month of the Ombudsman’s final decision the Council should:
• Apologise to Ms X and pay her £250 for the inconvenience and frustration caused through delays in reviewing her child’s EHC Plan, delays in providing complaint responses and misinformation within its complaint responses.
82. The Council should provide us with evidence it has complied with the above actions.

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Final decision

83. There was fault by the Council as the Council has agreed to my recommendation, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman