Summary: Miss X complained the Council failed provide suitable education for her child who has been absent from school since November 2021. Miss X also complained the Council delayed reviewing her child’s Education, Health and Care Plan. We found fault with the Council for failing to make suitable education available for two terms and five weeks. The Council agreed to apologise to Miss X and pay her £2,980 for her child’s missed education. The Council already accepted its fault for delaying outside the statutory timescales in reviewing the EHC Plan for nine and a half months. We maintain the Council’s offer of £900 for the distress and inconvenience caused through its delays.

The complaint

1. Miss X complained the Council failed to provide education to her child who has been absent from school since November 2021.
2. Miss X also complained the Council delayed in reviewing her child’s Education, Health and Care Plan since December 2021.
3. Miss X says this has impacted her child’s education and has also impacted on the overall wellbeing of her family.

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The Ombudsman’s role and powers

4. 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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended).
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended).
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)
7. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
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 Miss X’s complaint about lost education for her child and delays by the Council in reviewing her child’s Education, Health and Care Plan from 6 February 2023 to 9 September 2024.
11. I have not investigated matters before 6 February 2023 because this is more than 12 months back from when Miss X brought her complaint to the attention of the Ombudsman, on 16 April 2024. When someone takes more than 12 months to bring a complaint to the Ombudsman’s attention, we can not investigate such complaints without good reason.
12. In Miss X’s complaint, there is good reason to exercise our discretion to investigate matters slightly beyond 12 months, back to 6 February 2023, because this is the date of the relevant professional meeting. This provides a sound basis from which to begin an investigation.
13. I have ended my investigation on 9 September 2024 because the Ombudsman must provide a council with opportunity to address a complaint before we investigate. The Council issued its Stage 2 complaint response on 12 August 2024 and the Ombudsman confirmed we would be investigating this complaint on 1 September 2024. I have exercised my discretion to extend the end point of the investigation to 9 September 2024 because this is the date the Council started to provide new Alternative Provision of education to Miss X’s child. The Council also issued an amended Final Education, Health and Care Plan for Miss X’s child on 6 September 2024. This creates a sound end point for our investigation.
14. Should Miss X have any concerns about the Council’s actions or her child’s access to education after 9 September 2024, this would be the subject of a new complaint.

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How I considered this complaint

15. I considered evidence provided by the Council and Miss X as well as relevant law, policy and guidance.
16. Miss X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

Rules and Regulations

EHC Plans

17. 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.
18. 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.
19. 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. An annual review is completed when a council issues a letter advising of intention to cease, maintain or amend an EHC Plan following an annual review meeting.
20. 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.
21. 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)
22. 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)
23. 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)
24. 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)
25. 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.
26. 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.

Alternative provision of education

27. 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.
28. 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)
29. 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))
30. 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)
31. 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
32. 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.

33. 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.
34. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when a child has been excluded. Government guidance recommends for medical issues that a council considers its Section 19 duty to provide education where it is clear the absence is for more than 15 school days. When a council arranges alternative education on medical grounds, that education should begin as soon as possible, and at the latest by the sixth day of a child’s absence. In other absences, there is no set guidance but the Council should arrange education without undue delay.
35. 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.

What happened

Background

36. In January 2020, the Council issued the first EHC Plan for Miss X’s child, who I shall refer to as Y. This EHC Plan named a mainstream school for Y in Section I.
37. In September 2021, Y started secondary school. Y’s secondary school was a mainstream school.
38. In November 2021, Y’s school sent Y home following an incident.
39. The Council agreed to put in place tuition and a mentor for Y arranged through the school. The Council said Y should remain on role at the school.
40. From September 2022, 15 hours of tuition and 2 hours of mentoring each week was made available to Y. The Council increased Y’s mentoring to 3 hours each week in October 2022.
41. The Council issued a notification to amend letter on 17 October 2022 for Y’s EHC Plan.
42. On 2 December 2022, the Council issued an amended Final EHC Plan for Y. The Council named Y’s secondary school in Section I. Section F of Y’s EHC Plan included provision for a structured timetable and opportunities for mentoring.
43. On 8 December 2022, the Council considered Y’s access to education at panel. The Council decided:
• Y’s learning levels did not justify a Learning Disability setting.
• Y’s behavioural difficulties did not meet the criteria for involvement through Social, Emotional and Mental Health interventions.
• Y should be supported to attend mainstream school.
• Y’s school to consider social care involvement as it considers necessary.

Period of investigation

44. On 6 February 2023, the Council held a professionals meeting between itself, Y’s school and Y’s tuition provider. The Council agreed a revised timetable for Y’s education through the tuition provider from 20 February 2023 and agreed to explore a building course placement for Y.
45. On 14 February 2023, Y’s tuition provider produced a revised timetable for Y of 7.5 hours each week starting from 20 February 2023 because of Y’s difficulties with accessing 15 hours. This tuition timetable focused on core subjects. The Council confirmed it was funding this provision. This ran alongside 3 hours each week of mentoring.
46. The tuition provider ended the provision on 21 July 2023.
47. In September 2023, the Council offered various placement options for Y. Miss X declined these options because she did not consider Y could cope with mainstream school.
48. On 20 September 2023, Y started a placement at a building course. Y continued to be supported 3 hours each week through mentoring.
49. Y attended the building course twice before the building course cancelled the placement in December 2023 following non-engagement.
50. On 16 April 2024, Miss X made a formal complaint to the Council. Miss X said while Y has received consistent mentoring since November 2021, none of the placements arranged for Y have been successful. Miss X said Y is not receiving a suitable education or the support detailed in the EHC Plan.
51. The Council arranged a trial period for Y at an alternative provision of education provider. On 13 May 2024, the provider told the Council it could not offer a permanent place for Y because of behavioural issues during the trial.
52. On 15 May 2024, the Council issued a Stage 1 complaint response. The Council said it partially upheld Miss X’s complaint. The Council said it had been working with Y’s school to provide suitable alternative provision of education for Y. The Council accepted it had failed to review Y’s EHC Plan within the statutory regulations and had arranged an annual review meeting for 12 June 2024.
53. Miss X sought consideration of her complaint at Stage 2 of the Council’s complaints process on 31 May 2024. Miss X said:
• She disputed Y’s school had provided suitable education and the tuition sessions had broken down because of Y’s anxiety;
• She did not consider mainstream school was suitable for Y.
• The building course was good at first but broke down as Y’s anxiety increased.
• The most recent alternative provision offered had rejected Y.
• She was unhappy with the long delay in reviewing Y’s EHC Plan.
54. On 12 June 2024, the Council held an annual review meeting for Y’s EHC Plan.
55. The Council issued a proposed amended EHC Plan to Miss X on 1 August 2024.
56. On 12 August 2024, the Council issued its Stage 2 complaint response. The Council said:
• It decided in December 2022 that Y should be attending mainstream school and the Council would support Y’s attendance there.
• It considered various support offers suitable for Y but Miss X declined these.
• It named the mainstream school in Section I of Y’s EHC Plan and so it is that school’s responsibility to provide education for Y.
• It has worked with Y’s school to find suitable alternative provision of education for Y. It arranged a professional’s meeting to discuss Y’s education in February 2023. The Council pursued a construction course for Y following this meeting as Y expressed an interest in this.
• It understands Y is now about to start attending a new alternative provision of education provider.
• Miss X has a responsibility to ensure her child attends education on offer.
• It had failed to meet the statutory timescales for review of Y’s EHC Plan and apologised for this. The Council offered £800 to Miss X for these delays and £100 for her time and trouble.
57. The Council issued a Final EHC Plan for Y on 6 September 2024. The Council maintained Y’s mainstream school in Section I of the EHC Plan.
58. On 9 September 2024, Y started to attend 7 hours each week at an alternative provision of education provider.

Analysis

EHC Plan delays

59. Following the Council’s decision to amend letter on 17 October 2022, it had 12 months to complete the next annual review process. This meant it needed to send its next decision letter, following an annual review meeting, by the latest of 16 October 2023.
60. The Council failed to hold an annual review meeting for Y’s EHC Plan until 12 June 2024 and only issued the notification to amend letter on 1 August 2024. This meant the Council took 21 and a half months to complete the next annual review for Y’s EHC Plan following completion of the last annual review process. This was nine and a half months outside the statutory timescales and was fault.
61. Once the Council made its decision to amend Y’s EHC Plan, it issued the amended EHC Plan within the statutory timescales.
62. The Council has already acknowledged this fault in its Stage 1 and Stage 2 complaint responses and offered Miss X £800 for these delays and the impact this may have had on Y to suitable EHC Plan provision. The Council has also offered a further £100 for the distress and time and trouble this has put Miss X to.
63. The Council’s offer is suitable to reflect the injustice its fault caused. The Council has confirmed it has not paid this to Miss X.

Alternative provision of education

64. It is not the role of the Ombudsman to investigate the actions of a school. I also could not find the Council at fault for failing to provide education for Y before it was made aware that Y was not attending school.
65. In this instance, the Council was aware that Y not attending school before the start point of my investigation. The Council decided in December 2022 that Y should access education through a mainstream school. However, the Council also acknowledged that Y was not attending school and that it needed to support Y with their access to education. The Council has therefore accepted in December 2022 that it owes a Section 19 duty to provide education for Y.
66. 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.
67. The Council acted in line with its Section 19 duty through arranging the professionals meeting for Y on 6 February 2023 and funding the 7.5 hours of tuition, alongside 3 hours of mentoring, each week from 20 February 2023. At this stage, the Council has considered Y’s individual circumstances, consulted relevant professionals involved in Y’s education, drawn up a plan for education for Y and put this into practice without delay. I cannot find fault with the Council’s actions in February 2023.
68. From 20 February 2023 to the end of the academic year, the Council made available 10.5 hours of alternative provision of education each week for Y through formal tuition and mentoring. The Council planned to review Y’s access to education following the end of this tuition provision to decide if Y should access other formal education alongside the construction course. This was a merits decision by the Council and not one I can find fault with.
69. However, the Council did not keep Y’s part-time education through the tuition provider under review with the view to increasing this if Y’s capacity to learn increased. This was fault. However, this did not cause an injustice to Y because the level of education on offer was too much for Y to engage with, shown through Y’s inconsistent attendance. The Council should provide training to its staff to ensure it keeps part-time education under review.
70. In September 2023, the Council offered various placement options to Miss X to provide formal education for Y. Y also started at the building course in September 2023.
71. Miss X declined the offers of education for Y. Miss X did not have to accept these offers of education for Y. However, the Council made offers of what it considered suitable education for Y. I cannot find the Council at fault for failing to make suitable education available to Y in September 2023 since it made offers of education and put the building course in place.
72. The Council failed to monitor Y’s access to the building course or education after September 2023. This is because Y only attended the building course twice before the building course cancelled the provision in December 2023 through non-attendance. The Council did not offer any other education to Y from October 2023 until after Miss X’s contact on 16 April 2024. The Council was not meeting its Section 19 duty to provide education for Y during this time. This was fault. I have addressed this fault in paragraphs 75 to 77.
73. Following Miss X’s contact on 16 April 2024, the Council acted to arrange new alternative provision for Y on a trial basis. The Council acted appropriately in response to Miss X contact to fulfil its Section 19 duty. However, by 14 May 2024, this alternative provision provider cancelled the provision. It is not the Council’s fault the provider considered it could not meet Y’s needs. I do not find fault with the Council’s actions from 16 April 2024 to 14 May 2024.
74. The Council failed to provide any further alternative provision of education, other than the 3 hours of mentoring, from 14 May 2024 until 9 September 2024. The Council has not met its Section 19 duty; this was fault.
75. Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision put in place, a child’s individual needs and whether they are in a key academic year.
76. The Council failed to take suitable steps to make appropriate educational provision available to Y from October 2023 until 16 April 2024 and from 14 May 2024 to 9 September 2024. This amounts to two terms and five weeks.
77. I have considered Y’s individual circumstances and our guidance on remedies. This considers the lack of formal educational provision Y received caused by delays and lack of monitoring by the Council. This is balanced against the provision of three hours each week of mentoring Y continued to receive and the breakdown of the educational provisional on offer being caused by Y’s lack of attendance or behaviour. I consider, the Council should pay Miss X £1,250 per term for Y’s missed education.

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Action

78. Within one month of the Ombudsman’s final decision the Council should:
• Provide a payment to Miss X of £900 for the distress, uncertainty and inconvenience its delays outside the statutory timescales in reviewing Y’s EHC Plan caused.
• Provide an apology and pay Miss X £2,980 for Y’s missed educational provision from October 2023 to 9 September 2024 totalling two terms and five weeks.
79. Within three months of the Ombudsman’s final decision the Council should:
• Provide training and guidance to staff about the need to keep all cases of part-time education provided through the Council’s Section 19 duty under review with a view to increasing this as a child’s capacity to learn increases.
80. The Council should provide us with evidence it has complied with the above actions.

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Decision

81. There was fault leading to injustice. As the Council has agreed to my recommendations, 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