Summary: The Council significantly delayed issuing Mrs X’s child’s Education, Health and Care Plan and failed to consider whether it owed her child an alternative provision duty when they were missing school. It also failed to respond proactively enough to Mrs X’s reports that the school was no longer arranging all the provision in her child’s Plan. To recognise the uncertainty, frustration and distress caused by the Council’s actions, the Council has agreed to apologise, pay Mrs X £950 and take action to improve its services.

The complaint

1. Mrs X complained about the Council’s handling of her child, B’s, Education, Health and Care (EHC) Plan. Specifically, she said the Council:
• Failed to take appropriate action after she raised concerns in August 2023 that B was not receiving all the support in their EHC Plan;
• Failed to arrange alternative provision for B from September 2023 when B stopped attending their school;
• Significantly delayed issuing a final EHC Plan after it held an annual review for B; and
• Failed to communicate with Mrs X effectively or respond to her complaint in line with its complaints policy.
2. Mrs X said the Council’s actions led to B’s attendance problems worsening and meant B missed out on special educational support they needed. Mrs X also said she had to spend time chasing the Council for updates and responses to her concerns.
3. Mrs X would like the Council to provide training to its officers on how to write EHC Plans and compensate B for the education they missed because of the Council’s actions. She would also like the Council to improve its communications with the families that it works with.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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. 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.
7. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
8. 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.
9. 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. (Local Government Act 1974, section 26(5), section 34(B)6)
10. 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)
11. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).
12. 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(1), as amended)
13. 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

14. I have investigated events from when they began in August 2023. My investigation ends with the date of the Council’s final complaint response on 18 October 2024. Any matters after this date need to be investigated first by the Council before the Ombudsman can consider them as a new complaint.
15. In addition to the complaints investigated in this decision, Mrs X also complained that B’s February 2023 EHC Plan was not detailed enough. If Mrs X disagreed with parts of the February 2023 Plan, she had a right of appeal to a tribunal at the time this EHC Plan was issued. As it would have been reasonable for Mrs X to use this right of appeal, for the reasons set out in paragraphs 8-11, I have not investigated this part of Mrs X’s complaint.

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How I considered this complaint

16. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
17. Mrs X and the Council had an opportunity to comment on draft decisions. All comments received were considered before making a final decision.

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What I found

Law and guidance

Education, Health and Care Plans (EHC Plans)

18. The Children and Families Act 2014 (the Act) sets out the framework for supporting special educational needs (SEN). The Act is supported by Special Educational Needs and Disabilities Regulations 2014 (the Regulations) and the Special Educational Needs Code of Practice 2015 (the Code).
19. 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.
20. 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. 
21. 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)  

Annual reviews of EHC Plans

22. 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 proposes 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).
23. The courts have said that 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)

The Ombudsman’s role in complaints about EHC Plans

24. The Ombudsman can investigate complaints about issues which are the responsibility of the Council. However the Ombudsman cannot direct changes to EHC Plans or name a different educational setting. Only the SEND Tribunal can do this.
25. We can look at whether councils have made sure that arrangements specified in the EHC plan are put in place, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
26. The Ombudsman recognises it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. However the Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:
• check the special educational provision is in place when a new or substantially different EHC plan is issued, or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.

Key transitions in education

27. The Code says councils must review and amend EHC Plans in enough time to allow children or young people to move between key phases of education, including:
• Early years to junior school;
• Infant school to junior school; and
• Primary school to secondary school.
28. For children and young people entering a transition year, the annual review must be completed and the amended final EHC Plan must be issued by 15 February in the calendar year that they transfer.

Section 19 (alternative provision) duty

29. 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.
30. 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)
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; and
• 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.

What happened

Background

34. B has special educational needs and has an EHC Plan.
35. B’s last in force EHC Plan from February 2023 listed support they should receive at their school. This was set out in section F of the Plan and included:
• a specific form of emotional regulation support; and
• access to some small group activities.
36. The school had also been providing B with other forms of support that were not in B’s EHC Plan including some therapeutic activities.
37. B was due to transition into another phase of education in September 2024, meaning they would attend a different school. This is also known as a key transition year.

Key events

38. B’s school told Mrs X that from September 2023, B would no longer receive the specific form of emotional regulation support that was listed in their EHC Plan. The school said it was no longer its policy to provide this.
39. The school also said it would stop delivering the therapeutic activities it had been providing to date, which were not included in the Plan. Mrs X raised concerns about this with the Council in August 2023.
40. The Council arranged an annual review of B’s EHC Plan the following month. At the review it noted B’s attendance had reduced. It also noted Mrs X’s concerns that some of the section F provision was no longer being delivered by the school.
41. In early October 2023 the Council contacted B’s school about the support it was no longer providing. It also asked, due to B’s declining attendance, whether the school could provide B with work to complete from home.
42. The school told the Council it was no longer its policy to deliver the form of emotional regulation support in B’s EHC Plan but they could access a display about it in one of the classrooms. Regarding schoolwork for B to complete at home, the school said it was not its policy to provide this when children were missing school due to illness, as it could put additional stress on them.
43. The Council did not consider whether it owed a section 19 duty to B in response to this. It also took no further action regarding the emotional regulation provision in the Plan that was not being delivered. B’s school attendance declined further.
44. The Council issued a draft EHC Plan following the annual review. This draft set out the information about B’s transition to their new phase of education in September the following year.
45. Mrs X complained to the Council in early January 2024. She said:
• the Council still had not issued a finalised EHC Plan for B and this was overdue since their annual review;
• the Council had not addressed the emotional regulation support the school was no longer providing, despite it being in B’s EHC Plan; and
• the Council had not responded to her requests for alternative provision from September 2023 onwards due to B’s declining attendance.
46. Mrs X asked the Council again in February 2024 to consider putting in place alternative provision for B because they were missing school for medical reasons.
47. The Council told Mrs X in February 2024 that she could ask B’s GP for a sick note, submit it to B’s school and ask the school to provide work on the days B missed school.
48. Mrs X met with the Council in mid-March 2024. By this time B’s attendance was at 45% and Mrs X told the Council B should not be attending because it was causing them more stress. Mrs X asked the Council again for alternative provision to be arranged for B.
49. The Council decided it owed a section 19 duty to B following this meeting and from April 2024, B started attending an animal-based alternative provision for two days per week that was arranged by the Council. B attended this provision for one term, remaining there until the end of the school year. Mrs X said this provision worked well and improved B’s confidence so that they were able to attend their new school in September 2024.
50. It took the Council almost three months to respond to Mrs X’s stage one complaint. When it did, it agreed it should have been more proactive in ensuring B had work they could complete at home and in following up with the school about the section F provision that was not in place. However it repeated what the school had said, that several of the therapeutic activities previously delivered by the school were not in the plan and so neither the Council, nor the school, was under a duty to arrange them.
51. Mrs X was unhappy with the Council’s response and in mid-May 2024, she asked it to consider her complaint at stage two.
52. By September 2024 B was attending their new school full-time and had moved into the next phase of their education. However their EHC Plan naming this school placement was still at draft stage and had not been finalised.
53. Mrs X attended a meeting with the Council about the draft EHC Plan in September 2024. Mrs X asked the Council to make amendments and implement the recommendations from more recent reports, including a new Educational Psychologist’s report that Mrs X had commissioned. The draft reports to date had recommended ten hours of one-to-one adult support to be included in Section F. However Mrs X’s Educational Psychologist recommended B needed 25 hours of one-to-one support in Section F.
54. In early October 2024 Mrs X asked the Council to make further amendments to the EHC Plan. The Council said it would consider her request and issue a final EHC Plan within seven days.
55. The Council responded at the second and final stage of its complaints process on 18 October 2024. It took the Council almost five months to provide this response.
56. At the second stage, the Council did not uphold the same faults as it had in its stage one complaint response. However it did decide it should pay Mrs X a financial remedy. It offered her:
• £500 for delays in timescales and case management
• £150 for delays in the complaint process
• £250 for the time and trouble endured
• Total: £900
57. The Council issued B’s final EHC Plan on 31 October 2024. This named the school they had been attending since September 2024.

My findings

Section 19 duty – missing education

58. From September 2023 onwards, B’s attendance at school declined significantly due to medical reasons. The Council was aware of this but failed to properly consider whether it owed them a section 19 duty. This was fault by the Council.
59. When the Council did consider its section 19 duty properly in March 2024, it decided to put in place alternative provision for B, which started in April 2024 and was successful. Despite this, we cannot say that if the Council had properly considered its duty in September 2023 and kept this under review, it would have put this type of alternative provision in place sooner.
60. This is because there are too many unknowns. The Council may have considered its duty sooner and been able to work with the school to plan for a gradual reintroduction, or it may have offered provision that B would not have been able to manage at that time. The Council’s lack of timely decision making early on has caused Mrs X and B distress, frustration and uncertainty about whether B might have been better supported between September 2023 and April 2024. This is an injustice to them.

Section F provision – emotional regulation support and small groups

61. From September 2023, B’s school stopped providing all the Section F provision in B’s EHC Plan. The Ombudsman recognises it is not practical for councils to keep a watching brief on whether schools are providing all the special educational provision for every pupil with an EHC plan. However we do expect councils to investigate complaints that provision is not in place at any time.
62. Mrs X made the Council aware that the school was no longer delivering this provision from the start of term in September 2024 and the Council has accepted it was not proactive enough in trying to resolve this. The duty to arrange section F 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. This inaction was therefore fault by the Council.
63. As this change in the school’s policy about the delivery of B’s section F provision coincided with B significantly reducing their attendance due to ill health, we cannot say how much of this provision B would have been well enough to access. Instead the Council’s faults have caused Mrs X and B further distress, uncertainty and frustration.

Delayed EHC Plan

64. The Council significantly delayed issuing a final EHC Plan for B following their September 2023 annual review. As 2024 was a key transition year, B should have had a final EHC Plan issued by at least 15 February 2024. Instead, B transitioned to their new school in September 2024 without a final EHC Plan in place setting out the support they needed and only a draft version set this out. Even allowing for Mrs X’s requests for amendments to be made to the draft Plans, this delay was considerable. The Council was at fault.
65. The EHC Plan provision changed over several drafts and in response to new information from Mrs X between September 2023 and October 2024, so we cannot say even on balance, whether B would have had different section F provision in place by the time they started at their new school if not for this delay. Instead the delay has caused Mrs X and B further uncertainty and frustration.

Complaint handling

66. The Council significantly delayed responding to Mrs X’s complaint and this was fault. The Council said this was due to high workloads among relevant staff members.
67. This fault caused Mrs X further frustration at an already very stressful time. It also caused her avoidable time and trouble in complaining to the Ombudsman. Mrs X complained to us before she had her final complaint response because of the ongoing difficulties she was having obtaining this from the Council.

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Action

68. Within one month of the date of the final decision, the Council has agreed to:
1. Apologise to Mrs X and to A for the injustice caused by the faults in this case;
2. Pay Mrs X £700 to reflect the uncertainty, distress and frustration she and her child were caused by the Council’s faults; and
3. Pay Mrs X £250 to reflect the avoidable time and trouble caused by the delays in the Council’s complaint handling.
69. Within three months of the date of the final decision, the Council has agreed to:
1. develop an action plan to ensure its officers are reliably considering whether the Council owes a duty to children under section 19 of the Education Act 1996 when they are missing education and ensure officers are aware that - whether the Council decides it owes a duty or not – it must record how it came to this decision and keep this under review as needed;
2. remind its education staff of the Council’s duty under section 42 of the Children and Families Act 2014 to deliver all the special educational needs provision in section F of EHC Plans and act promptly in response to reports that this is not being delivered;
3. outline action it is taking or has taken to prevent delays in issuing EHC Plans in the future; and
4. outline action it is taking or has taken to reduce future complaint handling delays and deal with any existing backlog of complaints.
70. We publish Guidance on Remedies which sets out, in section 3.2, our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended.
71. The Council should provide us with evidence it has complied with the above actions.

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Decision

72. I find fault causing injustice and the Council has agreed to take action to remedy injustice and prevent future injustice.

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Investigator's decision on behalf of the Ombudsman