Summary: Ms J complained about the time the Council took in issuing an Education, Health and Care plan for her child. She said the Council also failed to provide alternative educational provision in the meantime. We found the Council at fault for the time it took to issue a plan and to implement tuition. The Council agreed to make a recognition payment to Ms J and her child, and to carry out service improvements to avoid this happening again.

The complaint

1. Ms J complains the Council has delayed in issuing an Education, Health and Care plan (EHC plan) for her child, X, and failed to provide alternative education provision in the meantime.
2. Ms J says X has been unable to access education as the school could not meet their needs.

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What I have and have not investigated

3. I have investigated the time taken by the Council to issue an EHC plan. I have not investigated whether the provision in the EHC plan was suitable. This is an appealable decision which the law says we cannot investigate.

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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 the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. 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)
7. The law says we cannot normally investigate a complaint when someone can appeal 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 appeal. (Local Government Act 1974, section 26(6)(a), as amended)
8. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
9. 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.
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)
11. 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.

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How I considered this complaint

12. I have considered information provided by the Council and Ms J, alongside the relevant law and guidance.
13. Ms J and the Council have had the opportunity to comment on a draft decision, and those comments have been considered before this final decision was made.

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What I found

The law and guidance

14. A child with special educational needs may have an Education, Health and Care (EHC) plan. This 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 education or name a different school. Only the tribunal can do this.
15. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says if the council decides to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).
16. Where the 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. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.
17. 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;
18. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example: 

• delays in the process before an appeal right started;
• where there is support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to the appeal; and
• alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the tribunal.  

19. 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).
20. 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.
21. 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)
22. 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).
23. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020]).

What happened

24. Ms J has a child (X), with special educational needs. The Council issued an EHC plan for X in June 2022.
25. In March 2023, the Council were notified by the school that X was not attending. The Council carried out an emergency review of the EHC plan in April 2023. Ms J, the school and the SEN officers agreed a phased return to school should be implemented.
26. The Council issued a draft amended plan in May 2023, which states the school can meet X’s needs.
27. The Council amended its draft EHC plan again and issued a new draft in July and again in September 2023, following responses from Ms J.
28. During this time, X was attending school on a phased basis, although his attendance was not consistent and was not full time.
29. In November 2023, when X had still not returned to full time education, the Council put four hours of tuition per week in place for X.
30. A final amended EHC plan was issued in December 2023. This plan also states X’s needs can be met by a mainstream school.

Analysis and findings

The EHC Plan

31. The Council has a statutory duty to issue a draft plan within four weeks of the review meeting. The Final EHC plan should have been issued in June 2023. Although the Council issued three amended draft EHC plans, a Final EHC plan was not issued until December 2023. This is fault.
32. A draft plan cannot be appealed to the Tribunal. So, although Ms J was communicating her disagreement with the draft plans with the Council, she was unable to begin the appeal process until December 2023.
33. I have considered the draft plan of May 2023 against the final plan of December 2023. Both state X’s needs can be met by a mainstream school. However, the Council has changed some of the detail of X’s provision in the final plan in December. The Council should have issued the final plan including all of the provision it included in its December 2023 plan in June that year.
34. The Council has delayed the final plan by approximately six months. This has caused Ms J to go to time and trouble in chasing the Council repeatedly to try to agree a plan.
35. Given that Ms J did not appeal the December 2023 plan, it seems fair to say that on the balance of probabilities she would not have appealed it if it was issued in June 2023 either.
36. The delay here has also caused an injustice to X. If the Council had issued the plan on time, the provision should have been in place for Autumn 2023. This may have helped the transition back to school. Having said this, I cannot say this would have meant that X would have been back at school full time for this term. The most I can say with any certainty is that the Council has caused a loss of opportunity here.
37. X did not return to school full time after the December 2023 plan was issued, so I cannot say the Council caused X to miss out on education through its delay. X may well have struggled to return to school in September regardless of the delay.

Alternative education provision

38. The Council should have issued a final plan in June 2023. It is reasonable to allow the Council four weeks to put the provision into place. This would take the matter to the end of the school year. On this basis, it is unlikely X would have had the provision during the summer term of 2023 even if the plan was issued as it should have been.
39. However, the Council should have implemented the provision in readiness for the Autumn 2023 term.
40. The Council, the school and Ms J agreed to reintegrate X to school on a phased return. It is fair for the Council to give this agreement some time, and the Summer term seems a fair amount of time to see whether this plan had helped him return to school.
41. When X had not returned to school by September 2023, the Council should have considered whether the phased return was enough to support him back to full time education. In this case, the Council decided in November that it was not, and at that point instated four hours of tuition.
42. For the sake of clarity, the tuition was not intended to be in place of full time education, as the Council remained of the view that a full time education was available to X at school. The tuition was put in place alongside the phased return to education at school.
43. As the Council decided that X required alternative education provision, I am unclear as to why it did not do so sooner. It is not enough to say X can return to school and then to allow this to go one over several months. Once the Council was aware X was not back at school full time at the beginning of the Autumn term, I would expect it to have addressed any need for alternative education provision by late September.
44. There is an injustice to X here as the tuition was not provided until late November. He has missed out on the provision for a significant proportion of the Autumn term. I have considered this against the fact that the provision missed out in is four hours of tuition and not full time alternative education provision, as the Council remained of the view that X could return to school to access this. This is reflected in my remedy recommendation.
45. As the Council did not change the plan to say X could not access education at school, it was not obliged to provide full time education at home. The Council is entitled to make this decision. It is not at fault for not providing more alternative education provision at home when it had made the decision X could attend school.
46. The Council is at fault for its delay in issuing a final EHC plan, and for a delay in putting the tuition in place.

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Agreed action

47. Within one month of the decision, the Council will:

• make a payment of £250 to Ms J for her time and trouble.
• make a payment of £750 to Ms J for X, for the injustice caused to him.

48. Within three months of the decision, the Council will ensure all relevant staff are reminded of the statutory timeframes and the correct process which must be followed following an emergency EHC plan review.
49. The Council should provide us with evidence it has complied with the above actions.

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Final decision

50. The Council is at fault for its delay in issuing a Final Education, Health and Care Plan and for delaying putting some alternative provision in place.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman