Summary: The Council failed to consider whether it owed Mr X’s child, Z, a duty to provide alternative education when they could not attend school due to ill health. It also failed to ensure Z received all the support in their Education, Health and Care Plan and failed to do what it said it would following key meetings. The Council’s faults caused Z to miss out on a term of provision and caused Mr X significant uncertainty, frustration and time and trouble. In recognition of the injustice caused, the Council has agreed to apologise, arrange additional provision to make up for some of the sessions Z missed, pay Mr X £2,700 and carry out service improvements.

The complaint

1. Mr X complains the Council:
1. Failed to put in place suitable alternative provision for his daughter, Z, when she stopped attending school for health reasons in April 2023;
2. Failed to secure the section F provision in Z’s EHC Plan when she was not attending school;
3. Delayed finalising EHC Plans for Z following her annual reviews;
4. Failed to follow up on key actions agreed at meetings in a timely way;
5. Failed to provide funding for Z’s provision while she was out of school, leading Mr X to pay for it himself; and
6. Delayed responding to his complaints.
2. Mr X says as a result of the Council’s actions, Z has been isolated due to an avoidably long period of missed education and has had worsening mental health. Mr X says he and his partner have also been caused stress and financial loss.

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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. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. When considering complaints, if there is a conflict of evidence, 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.
6. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
7. 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.
8. 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)
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. I have investigated events from when they began on 8 May 2023 until the date of the Council’s complaint response on 23 May 2024. Any events after this time are new matters and can be raised as a new complaint.

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How I considered this complaint

11. I considered the information provided by Mr X and the Council.
12. I considered the relevant law and guidance as set out below.
13. I considered our Guidance on Remedies.
14. Mr X and the Council had an opportunity to comment on a draft decision. I considered all comments received before making a final decision.

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What I found

Alternative provision

15. 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.

Inability to attend due to health needs

16. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
17. 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)
18. 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))
19. 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.
20. Where it is clear a child will be away from school for 15 days or more (either consecutively, or cumulatively), councils should liaise with medical professionals to ensure there is minimal delay in arranging appropriate provision where required. While there is no legal deadline to start provision, it should be arranged as soon as it is clear a child will be absent for health reasons for more than 15 days.

Education, Health and Care (EHC) Plans

21. A young person with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out their needs and what arrangements should be made to meet them.
22. The EHC Plan is set out in sections which include:
• Section B: The child or young person’s special educational needs. 
• Section F: The special educational provision needed by the child or the young person.  
• Section I: The name and/or type of school. 
23. We cannot direct changes to the sections about education or name a different educational setting. Only the SEND Tribunal can do that.
24. Councils are responsible for making sure that arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.

Reviewing EHC Plans

25. The Statutory Guidance: Special Educational needs and disability code of practice: 0-25 years (“the Code”) says:
• EHC Plans must be reviewed as a minimum every 12 months (para 9.166);
• within four weeks of the review meeting the council must decide whether it proposed to keep the EHC Plan as it is, amend the Plan or cease to maintain it, and notify the child’s parent or young person and the educational setting (para 9.176);
• if the Plan needs amending, councils should start the process of amendment without delay (para 9.176);
• if amending the Plan, councils must send the child’s parent or the young person a copy of the existing Plan and a notice providing details of the proposed amendments, and they must be given at least 15 calendar days to comment on the proposed changes (paras 9.194 & 9.195);
26. Within twelve weeks of the annual review meeting, the final, amended EHC Plan must be issued. R (L, M and P) v Devon County Council [2022] EWHC 493 (Admin)

Tribunal appeals

27. 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.
28. There is a right of appeal to the SEND Tribunal against the description of a child or young person’s special educational needs (SEN) in a final EHC Plan, the special educational provision specified in the Plan, the school or placement named in the Plan, or that no school or other placement is specified in the Plan.
29. 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. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)

Education Other Than at School (EOTAS)

30. Section 61 of the Children and Families Act allows councils to arrange for special educational provision to be made otherwise than in a school. We refer to this as EOTAS in this decision statement.

What happened

Background

31. Z has special educational needs and physical health needs. Z has an EHC Plan.
32. Z’s last in force EHC Plan, from January 2022, listed additional support in Section F that they should receive at school including:
• a differentiated curriculum;
• support from teaching staff to interact with classmates;
• support from school staff in understanding emotions and social situations; and
• support from familiar adults to manage Z’s anxiety around attending school.
33. It said Z would receive this support at the mainstream school named in their EHC Plan, School A. While at School A, Z accessed their education through a special educational needs (SEN) provision on site.

Key events

34. The Council became aware on 8 May 2023 that Z was no longer attending School A due to a relapse in their physical health condition. Before then Z had been attending on a reduced timetable for several months.
35. Mr X asked the Council on this date to refer Z to the hospital school that Z had attended before. Mr X said this had assisted Z back into education in the past and hoped it would again. According to case records, the Council agreed the referral was a good idea. The Council did not record whether it, or School A, would make the referral or whether a referral was made.
36. Z had been consistently absent from School A for more than fifteen days on 24 May. There is no evidence to show how the Council kept under review what education and support Z was receiving either from School A or following any referral to the hospital school between 24 May and 17 July 2023. According to the case records Mr X did not contact the Council about Z’s education again until July 2023 when he asked for the Council to fund an external tutor for Z.
37. On 18 July 2023 an annual review meeting was held. Z’s social worker, staff from School A and Z’s parents attended. The Council’s SEND department did not send a representative. It was noted at the meeting that:
• Z’s attendance since September 2022 was 54 per cent and everyone agreed Z needed support to build back up to attending school full-time;
• Z had not been attending school due to “a combination of anxiety, pain due to their ongoing physical health issues, and medical appointments”;
• Z had not been able to engage with self-directed home learning and Mr X said the lessons from home using the tablet computer were unsuitable;
• Mr X asked for a member of school staff to attend Z’s home and assist them with their work and the school agreed to do this for one hour twice a week to give Z additional support.
38. Near the end of the document, the section which asked whether the EHC Plan should be maintained or amended was left blank.
39. On 11 September 2023 the Council decided to maintain Z’s EHC Plan and not make any changes. It informed Mr X that if he disagreed with the decision, he could appeal to the SEND Tribunal. Mr X did not appeal the final EHC Plan as he accepted the named school was suitable and agreed to try the temporary reintegration measures put forward by the school.
40. From September 2023, School A began attending Z’s home for two hours each week, as agreed. However by 10 October Mr X asked for these home visits to stop, as the sessions weren’t working.
41. Around a week earlier Mr X had enquired with the Council and school again about funding an external tutor for Z. The Council’s case records from this time show the Council being unsure if funding for a tutor would be approved and whether there was enough evidence of a medical reason Z could not attend school.
42. Mr X complained to the Council at stage one of the complaints process on 10 October 2023. He said:
• the Council was in breach of its legal duties as Z had not been receiving any of the SEN provision in Section F of their EHC Plan since they stopped attending school;
• the Council had failed to consider its duties under section 19 of the Education Act and put in place alternative provision for Z; and
• he again requested an external tutor, as he said the two hours per week with a teaching assistant from School A was not suitable provision.
43. The Council did not respond to Mr X’s stage one complaint. Instead the Council held an emergency annual review on 19 October 2023 following Mr X’s complaint and decided to arrange additional provision for Z. It said:
• Z needed a reintegration package to assist them back into school and this would be arranged by the school “with support from the local authority”;
• The hospital school referral Mr X requested in May 2023 had not been reviewed by the hospital school yet as it was missing signatures from some NHS staff;
• Once the signed documents were obtained, the Council would consult the hospital school and if it could not accept Z, it would look to fund a private tutor;
• The Council would fund horse riding and swimming as enrichment activities;
• School A should refer Z for speech and language support; and
• the Council said this package of support was a “reintegration package” for getting Z back into School A, so the school would be responsible for arranging the provision and the Council should review the progress of the package on a half-termly basis.
44. Mr X paid for the horse riding on the understanding he would be reimbursed and so Z received the horse riding. However no other education or provision was arranged between October and December 2023.
45. The Council held another annual review on 6 December 2023. It noted that several actions from the emergency meeting in October had still not been carried out including a referral for speech and language therapy and arrangement of tutoring. Mr X said he had not been reimbursed for the horse riding and it was agreed that he would be reimbursed once receipts and invoices were obtained.
46. The meeting notes then show confusion from School A about whether the school or the Council had been responsible for arranging the provision. During this meeting the Council also explained what an EOTAS package was to Mr Z and how this could be arranged by the Council if he chose this route.
47. The Council said Mr X could think about whether he wanted an EOTAS package instead of Z being reintegrated to School A. School A said this raised more confusion about whether the school or the Council should now take over the commissioning of tutoring for Z.
48. At the end of the meeting it was agreed the school would look for tutors for Z. The school said it was concerned by the lack of timescales for arranging provision and the significant amount of education Z had missed. Mr X expressed frustration about the fact that over months of meetings, actions had not been completed when they should have been.
49. 2024
50. In January 2024 Z continued to only receive horse riding provision, funded by Mr X and no other education or support.
51. Mr X raised another complaint to the Council on 12 February 2024, having not received a response to his complaint from October 2023. He said:
• Z had now missed a significant amount of education and had become socially isolated;
• he still had no response to his first complaint;
• actions from the emergency review in October 2023, highlighted again at the December annual review, still had not been carried out;
• he still had not been reimbursed for the equine therapy;
• he still had no final EHC Plan following the December 2023 annual review; and
• he wanted a private external tutor put in place for Z and in the long term said Z needed to be in a specialist education placement.
52. From mid-February 2024 Z started to receive an EOTAS package and was taken off-roll at School A. The package included hydrotherapy, horse riding and digital education provision. In late February the Council referred Z for speech and language therapy.
53. In March 2024 Mr X’s preferred specialist school, School B, informed the Council it had a place available for Z from October 2024 and the school felt it could meet Z’s needs.
54. Mr X still did not receive a response to either of his complaints and so on 15 April 2024 he complained to the Ombudsman. Three days later, the Council finalised Z’s EHC Plan - nineteen weeks after the December annual review. The Plan said Z would receive the EOTAS package until they could start at School B in October 2024. This package continued through to May 2024 when my investigation ends.
55. Following the Ombudsman’s request, in May 2024 the Council responded to Mr X’s complaints and partly upheld them.

My findings

56. We cannot investigate any matter which was part of, was connected to, or could have been part of an appeal to the SEND Tribunal. This is set out above in the Law and Guidance section of this document.
57. Mr X had a right of appeal to the SEND Tribunal following the 11 September 2023 EHC Plan which named School A and listed support to be provided in that school. It was not reasonable for Mr X to appeal this Plan, as at that time he agreed that Z needed a reintegration plan for going back to School A and so they trialled support provided from the school at home.
58. By 10 October Mr X decided the support plan from the school was not working and asked for this to be changed. He was still within his appeal rights window at this time. However a few days later the Council carried out another annual review and agreed to arrange further provision. I do not consider it was reasonable for Mr X to use his appeal rights in these circumstances because he had a reasonable expectation that the Council would issue a new decision following the review. So I have investigated Mr X’s complaint about provision during this time.

Complaint 1a) Alternative provision and Complaint 1b) Section F (EHC Plan) provision

59. May – October 2023
60. The Council was aware in early May 2023 that Z was not attending school and it agreed she needed additional support to access school such as a referral to hospital school. It should have kept these arrangements under review and considered whether it owed Z a section 19 duty from the fifteenth day of her absence - 24 May 2023. The Council did not do this. This was fault.
61. The Council also failed to keep its section 19 duty under review in the coming months. During this period between May and October, Z mainly received either no education at all, or self-directed learning to be accessed at home on a tablet computer, or – for several weeks – two hours a week of home-based support from school staff. Z was also, according to her EHC Plan, supposed to be referred for speech and language support during this time.
62. We cannot say, even on balance, what Z could have engaged with during this time as they were too unwell to attend school. We therefore also cannot say how much of the section F provision in Z’s Plan they could have engaged with. However the Council’s failure to consider its section 19 duty during this period has left Mr X with uncertainty about whether Z could have accessed more or different education and support, including perhaps some of their section F provision. This uncertainty is an injustice to Mr X and Z and the Council’s actions have also caused Mr X avoidable frustration.

October 2023 – February 2024

63. From 17 October 2023 the Council was aware that Z had been out of full-time education for several months and knew that Mr X was unhappy with the amount of provision in place from School A. It held an annual review meeting. However the Council still did not record anywhere during this time whether it decided it owed Z a section 19 duty. This was poor record keeping and was fault.
64. On balance, we can say that from this point the Council accepted that it did owe Z a section 19 duty, despite failing to record this, as it agreed it would support the school to arrange a package of alternative education and support for Z and it said it would keep this package under review.
65. The agreed package of support was not put in place until February 2024 and Z only received horse riding between October 2023 and February 2024, which was funded by Mr X. This was fault by the Council. It is unclear whether the other provision failed to materialise due to the Council’s actions, or the school’s or both. In any case, the Council failed to keep oversight of the package of support and councils remain responsible for ensuring schools carry out functions on its behalf. The Council failed to ensure Z received the agreed alternative provision and this fault caused Z to miss out on most of the agreed provision for several months.
66. Z’s EHC Plan was also in force during this time so as well as its section 19 duty, the Council had a duty under section 42 of the Children and Families Act to ensure Z received the section F provision in their Plan. Much of the section F provision was school-based and so there is uncertainty about how much of this Z could have accessed while they had a package of support outside of school.
67. However, one of the actions which was still listed in section F of the EHC Plan and was also recommended as part of the alternative education package was a speech and language therapy referral. The Council delayed by several months in ensuring that this referral was made and this was fault. If not for this fault, it is most likely that Z would have accessed speech and language support sooner than they did.

Complaint 1c) Delayed finalising EHC Plans for Z following her annual reviews

68. The Council had four weeks to decide whether to maintain Z’s EHC Plan following the July 2023 annual review. The Council took almost eight weeks to make this decision and this delay was fault.
69. The Council had twelve weeks to finalise Z’s EHC Plan following the October 2023 annual review and it took just over nineteen weeks. Again this delay was fault.
70. These delays caused Mr X avoidable frustration at an already difficult time.

Complaint 1d) Failed to follow up on key actions agreed at meetings in a timely way

71. During this complaint period, it was not always clear in the annual review notes, or the case records which organisation (council or school) was responsible for arranging what provision. Key actions following meetings were then routinely not carried out. This was further poor record keeping by the Council which caused Mr X significant uncertainty and frustration. I have recommended a service improvement to prevent recurrence of this fault in future.

Complaint 1e) Failed to provide funding for Z’s provision, leading Mr X to pay for it himself

72. Mr X funded Z’s horse-riding provision himself and was not reimbursed for this for several months and after Mr X chased the Council several times. At the time, this was the only provision Z was receiving which understandably left Mr X feeling pressured to keep up these payments. The Council has now reimbursed Mr X, however the time the Council took to do this was fault and caused Mr X further frustration.

Complaint 1f) Delayed responding to his complaints

73. Mr X complained to the Council twice without receiving a response and did not receive one until the Ombudsman asked the Council to respond more than six months after he first complained.
74. The records show that the Council tried to resolve the issue informally by carrying out reviews of the EHC Plan. It is welcome that the Council was proactive however Mr X still should have received responses to his complaints.
75. The Council delayed significantly in responding to Mr X’s complaints and this caused Mr X frustration and put him to avoidable time and trouble in coming to the Ombudsman.

Recent LGSCO investigations into Cornwall Council

76. The Ombudsman found fault in several cases in 2024 that were similar to the faults found in this case and covered a similar time period. Following our investigations the Council agreed to make several changes to how it records and reviews its section 19 duty and ensures children and young people are receiving the provision in their EHC Plans. These service improvements would not yet have taken effect during the events Mr X complained of and so I have not repeated the same service improvements below.

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Agreed action

77. Within one month of the date of the final decision the Council has agreed to:
1. Apologise to Mr X for the injustice caused by the faults in this case;
2. Arrange some additional speech and language support for Z to make up for the several months they missed due to the Council’s delay in arranging their agreed provision;
3. Pay Mr X £400 to reflect the uncertainty caused to Z when the Council failed to properly consider its section 19 duty to Z between May and October 2023;
4. Pay Mr X £2,000 to reflect the injustice caused to Z by an entire missed term of education and support for Z between October 2023 and February 2024; and
5. Pay Mr X £300 to reflect the uncertainty and frustration he was caused by the Council’s faults, as well as the time and trouble he was put to in having to come to the Ombudsman to obtain a complaint response.
78. Within three months of the date of the final decision, the Council has agreed to:
1. Demonstrate that it has instructed all SEND staff and staff dealing with alternative provision to ensure that case records and meeting notes - including annual review meetings - must record which organisation is responsible for carrying out any agreed actions, with respect to children and young people’s referrals for education and support; and
2. Demonstrate that it has informed its complaint handling staff that while proactively contacting complainants to resolve complaints is welcome, this is not a replacement for providing them with a complaint response; and
3. Look into what caused the delays in the Council making decisions and finalising EHC Plans in this case and outline what action it has taken to prevent recurrence of these delays in future.
79. We publish Guidance on Remedies which sets out, in section 3.2, our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended.
80. The Council should provide us with evidence it has complied with the above actions.

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Final decision

81. I have completed my investigation. I have found fault leading to injustice and the Council has agreed to apologise, pay a financial remedy and carry out service improvements.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman