Summary: Ms X complained about the Councils handling of her son, Y’s, Education, Health and Care Plan. She said the Council failed to complete a transition review and failed to secure education and the provision in the plan. Ms X said this distressed and frustrated her and Y missed education and plan provision. There was fault in the way the Council delayed starting consulting with other educational provisions, distressing Ms X. The Council has apologised. This is a suitable remedy.

The complaint

1. Ms X complained about the Councils handling of her son, Y’s, Education, Health and Care (EHC) Plan. She said the Council failed to complete a transition review and failed to secure education and the provision in the plan. Ms X said this distressed and frustrated her and Y missed education and EHC Plan provision.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. 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.
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)

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What I have and have not investigated

7. I have investigated Ms X’s complaint from March 2023.
8. I have not investigated any part of this complaint before March 2023. This is because there is no good reason to disapply the law in this matter. I reference events before this date to give context in this matter.

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How I considered this complaint

9. I read Ms X’s complaint and spoke to her about it on the phone.
10. I considered information provided by Ms X and the Council.
11. 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

Background information

12. 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. 
13. 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)  
14. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

15. 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.
16. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
17. For young people with an EHC Plan, preparation for transition to adulthood must begin from year nine (age 13 to 14). Transition planning must consider the young person’s needs as they move towards adulthood. It should plan to support their choices for further education, employment, career planning, financial support, accommodation, and personal budgets where appropriate.  
18. There is a right of appeal to the Tribunal against:

• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified; and
• an amendment to these elements of an EHC Plan.

19. 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)
20. 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.
21. 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. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
22. 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.
23. 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)
24. 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)
25. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
26. 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))
27. 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))
28. 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)
29. 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’)
30. 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

What happened

31. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
32. Y found attending educational settings difficult. Y previously had a dual placement between a school and an educational provision. The Council issued Y’s EHC Plan in November 2022 and named solely the educational provision.
33. In December 2022 the Council sent out consultation letters to three education providers to consider a residential placement for Y. No provider could offer a placement.
34. The Council continued to consult with residential education providers, without success.
35. The educational provision provided tutors to support Y in his home. The provision report detailed Y engaged, at times, with different activities.
36. Ms X asked the Council to complete an early review of the EHC Plan in April 2023. The Council completed the review in May 2023. The result of the review was the Council would amend Y’s plan.
37. The Council sent the new plan to Ms X in June 2023. Following consideration of the EHC Plan Ms X asked the Council to consult with several residential education providers. The Council sent several consultations to different providers.
38. The Council issued Y’s final EHC Plan in July 2023.
39. The Council continued to consult with residential education providers. The Council did not receive any offers to support Y.
40. Ms X complained to the Council in August 2023. She complained Y did not have suitable education, it did not complete the review by the end of March 2023 and it had not secured a school to name in the EHC Plan.
41. The Council responded to the complaint in August 2023. The response confirmed the Council issued the plan in November 2022 and named a provision it considered suitable to meet Y’s needs. The response accepted it could not identify a placement from September 2023, by the transfer deadline of March 2023. The Council apologised it could not identify suitable education provision for Y, but it would continue to consult to try to find a placement.
42. The Council continued to chase education providers for a place for Y. The Council did not receive any placement offers.
43. Ms X asked the Council to escalate her complaint to stage two in October 2023. She asked the Council to consider her complaint with another matter she complained about. Ms X set out her concerns about a lack of progress for an educational placement for Y.
44. The Council responded to the stage two complaint in November 2023. The Council accepted it did not take timely action about transfer to post 16 education and apologised. The Council confirmed it consulted with 27 education providers but not had an offer of a placement. The Council confirmed Ms X lodged an appeal with the SEN Tribunal.
45. Ms X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Ms X would like the Council to compensate Y for the missed provision and her for the distress.
46. In response to my enquiries the Council stated Ms X appealed to the Tribunal following the July 2023 EHC Plan. The Council evidenced the education provision provided tutors from March 2023 until July 2023. It stated it considered this was suitable to Y’s needs.

My findings

47. The Council dealt with this complaint through its corporate complaint procedure. Part of Ms X’s complaint is about social care. The Council dealt with this in a separate complaint. Some matters are linked due to Y’s needs.

Education and SEN provision

48. Y was on roll with an education provision from March 2023 until the end of the academic year. I have seen a report to evidence Y attended a farm provision. Y did not attend the educational setting.
49. Councils 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”.
50. The Courts have said it is for a council to decide what is ‘suitable education’. The Courts have said the question is whether the education offered is reasonably possible or reasonably practicable for the child to access, not whether the parent or child have a reasonable objection to attending that school.
51. The Council says the educational provision could meet Y’s needs and provide the provision set out in the EHC plan. The Council therefore found there was suitable education available to Y. For this reason, it says it did not have a duty to provide an alternative education.
52. I find the Council was entitled to decide the education offered to Y by the provider was ‘suitable education’.
53. The education provision provided tutors to meet Y’s needs in the family home. The provision determined this was what Y could engage with. The Council has evidenced the tuition provided for Y. The tuition provided included education and EHC Plan provision. The Council considered this was what Y could engage with at the time.
54. I have considered this case from March 2023 until the Council issued the final EHC Plan in July 2023, giving Ms X an appeal right to the SEN Tribunal. I am satisfied the Council considered Y had provision, suitable to his needs and engagement, during this time. The Council was not at fault.

EHC Plan review process

55. The Council issued Y’s EHC Plan in November 2022. There was no requirement to complete a review before March 2023. The Council accepted it delayed starting the consultation process and apologised.
56. The Council has evidenced it consulted with many education providers, without success. On the balance of probabilities, I cannot say if the Council had consulted earlier, the result would have been different. Given the Council accepted the fault, I consider the apology a suitable remedy for the injustice this fault caused.
57. Ms X asked the Council to complete a review in April 2023. The Council agreed and completed the review in May 2023. The Council issued the final plan in July 2023. This plan gave Ms X appeal rights to the SEN Tribunal. The Council completed the review process within the statutory timescales. The Council was not at fault.

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Final decision

58. I have completed my investigation. I have found fault by the Council, which caused injustice to Ms X. The Council has already remedied the injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman