Summary: Miss X complained that the Council had failed to consider a funding request from her son’s school. She said the Council had failed to stick to deadlines and her son has been out of education. We find the Council was at fault. This cause significant distress to Miss X and her son missed out on education. The Council has agreed to make several recommendations to address this injustice caused by fault.

The complaint

1. The complainant, Miss X, complains that the Council has failed to consider a funding request from her son’s school. She said the Council has failed to stick to deadlines and her son has been out of education.

Back to top

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 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)
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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)
7. 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.
8. 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.
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
10. 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)

Back to top

What I have and have not investigated

11. I have investigated matters up until September 2023.
12. I have not investigated matters after September 2023. This is because Miss X had a right of appeal which she did use. This is further explained in paragraphs 6,7 and 8.

Back to top

How I considered this complaint

13. I spoke with Miss X about her complaint. I considered all the information provided by Miss X and the Council.
14. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

Back to top

What I found

EHC Plan

15. 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. 

Reviewing an EHC Plan

16. 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.
17. 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) 
18. 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.

General section 19 duty

19. 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.
20. 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)

Educational provision- available and accessible

21. 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)

Summary of the key events

22. Miss X’s son, B, has an EHC Plan.
23. An educational psychologist (EP) report was completed in April 23. It notes that:
• following Tribunal regarding a school placement in 2022, the current school was named;
• B began transition in the summer term with a view to starting his timetable from September 2022. Prior to this he was electively home educated since being in year three;
• B had been unable to attend school since December 2022 due to high levels of anxiety around attending school;
• the EP said alternative provision would need to be built into his timetable;
• B will need access to online learning; and
• B would need some 1:1 support to explore his anxiety.
24. An annual review was held in April 2023. It was noted that:
• B’s attendance was sporadic and was noted as 12.1%;
• B’s heightened anxiety levels had prevented him from being able to attend school at all since the autumn term;
• the school had increased concerns for how they could meet B’s long term needs;
• all professionals were in agreement that the school could not meet B’s current needs and the provision recommended by the EP needed to be in place before any further attempts were made to reintegrate B into a mainstream setting; and
• the school had recommended education other than at school (EOTAS).
25. In July 2023, Miss X asked the Council for an update regarding the annual review. She said the school placement was not suitable and alternative provision was needed. She said B was out of education and said his mental health had declined rapidly.
26. In response, the Council said it was working through its annual review backlog as quickly as it was able to.
27. The Council contacted the school. It said it had not received any costings as part of the annual review. But the school said it had put together a costed plan as the preference was for EOTAS to be named and an alternative provision package to be sought.
28. The Council told the school the long-term plan should still be for B to reintegrate back into school. It said it would not look to identify EOTAS if the Council thinks B was working towards reintegration.
29. On the 7 September 2023, the Council issued its decision to not amend the EHC Plan letter to Miss X. Miss X requested mediation the following month.
30. The Council spoke with the Miss X in November 2023. She said there was a meeting in October 2023 where it was agreed additional provision funding would be considered. But she said there had been no response from the Council. The Council agreed to contact the school.
31. In January 2024, the mediation panel outcome stated the Council maintained its decision not to amend the EHC Plan. Miss X appealed to the Tribunal.
32. An annual review was held in March 2024. It was noted that:
• a Tribunal date had been set for January 2025;
• there were ongoing discussions between school and the Council to plan and support educational engagement; and
• the Council were to respond to the recommendation for alternative provision suggested by the EP, as well as the online learning.
33. In July 2024, the Council’s panel considered additional funding request. It was noted that:
• a Tribunal appeal had been logged against sections B, F and I and Miss X was requesting EOTAS; and
• the Council recommended agreeing to EOTAS and removing funding from the school from the end of June.

Complaint to the Council

34. Miss X complained in January 2024. She said:
• her son was out of education and was isolated;
• there was a meeting with the school in October 2023 and funding for alternative provision and online learning was discussed. But she said there has been no updates since; and
• school requested funding for alternative provision in March 2023 and nothing was done.
35. In response the Council said:
• a request for additional funding was not made as part of the April 2023 annual review. The request was made in September 2023. But the Council said it had not yet considered this;
• the mediation outcome was communicated to her a day later than the date agreed on the mediation action plan; and
• it has asked an officer to ensure the funding request is considered by the 6 February 2024.
36. Miss X asked for her complaint to be escalated. The Council responded in March 2024. It said the funding request had still not been considered. It said it would follow this up and told Miss X to expect a response later in the month.

Analysis- was there fault by the Council causing injustice?

37. The annual review was held in April 2023. The school stated they were unable to meet B’s current needs. The school agreed that the provision recommended by the EP needed to be in place before any further attempts were made to reintegrate B into a mainstream setting. This related to alternative provision and online learning. The school also recommended EOTAS.
38. Guidance states that 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. But the Council did not notify Miss X of its decision to maintain the EHC Plan until the 7 September 2023. Therefore, there is a significant delay. This is fault. This caused distress to Miss X and delayed her right of appeal.
39. As stated in paragraph 37, the school and EP had recommended alternative provision. It was also noted in April 2023 that B had not been in school since December 2022.
40. We asked the Council whether it considered the education provided to be suitable. It said as the school was named through tribunal in 2022, it did consider the school to be suitable. It said any alternative provision should have been with a view to re-integrate B into a setting. But it said it did not work with the school to ensure this was in place until a formal appeal was submitted in September 2023.
41. It is for the Council to decide whether a school placement is suitable. In this case, the tribunal decided it was and we cannot question this. The Council decided not to amend the plan which Miss X had a right of appeal against. But there is no evidence to suggest the Council considered the school’s request for alternative provision in April 2023 and the Council has confirmed it did not work with the school to ensure this was in place until September 2023. This is fault and B remained out of education.
42. In acknowledgement of missed education, we recommend a payment per term. In this case, as a result of fault by the Council, the lack of education amounted to one term [between the end of April to July 2023]. I consider a suitable remedy in this case to be £2000. In determining this, I have taken into account that whilst B received no education, the education he did receive before he stopped attending was limited as he was transitioning back into school after being electively home educated. Therefore, this indicates that if alternative provision had been provided, it would not have been full time.

Back to top

Agreed action

43. To address the injustice caused by fault, within one month of my final decision, the Council has agreed to:
• write to Miss X with an apology that takes account of our published guidance on remedies and accepts the findings of this investigation;
• pay Miss X £2000 for the educational benefit of B, to recognise the impact of its failing on B’s education; and
• pay Miss X £250 to acknowledge the distress caused to her by the fault identified in this statement.
44. Within two months the Council should remind relevant officers and managers of its statutory duties under Section 19 of the Education Act 1996.
45. Within three months the Council should review why it took approximately 19 weeks to consider the annual review. If the Council identifies flaws in its process or areas for improvement, it should prepare an action plan setting out how it will address those issues.
46. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

47. There was fault by the Council. The actions the Council has agreed to remedy the injustice caused. I have completed my investigation.

Investigator’s final decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman