Summary: Mrs X complained the Council did not provide education and Education, Health and Care (EHC) Plan provision for her child, Y, since May 2023. She also complained about delays in the EHC Plan review process. Mrs X said this frustrated and distressed her and Y missed education and plan provision. There was fault in the way the Council delayed issuing a final EHC plan. This frustrated Mrs X’s appeal right to the Tribunal. The Council has agreed to make a financial payment.

The complaint

1. Mrs X complained the Council did not provide education and Education, Health and Care (EHC) Plan provision for her child, Y, since May 2023. She also complained about delays in the EHC Plan review process. Mrs X said this frustrated and distressed her and Y missed education and plan provision.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with a Council’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)
4. 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

5. I read Mrs X’s complaint and spoke to her about it on the phone.
6. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
7. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background information

8. 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.
9. 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)  
10. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

11. 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 then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
12. 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. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.
13. There is a right of appeal to the Tribunal against a council’s:

• 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 in their EHC Plan; and
• amendment to these elements of an EHC Plan.

14. 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)
15. 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.
16. 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.
17. 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). 
18. 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.
19. 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)
20. 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)
21. 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

What happened

22. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
23. Y has additional needs and attended school B. School B started the annual review in March 2023. The meeting could not consider all of the information within a reasonable time, so agreed to complete the rest of the review at the start of April 2023. Mrs X was unable to attend this meeting. School B completed the review at the start of May 2023.
24. Y was involved in an incident in May 2023. School B decided Y could not return to the site. It reported it offered to send work home, but Mrs X said this was not suitable. School B also funded a social care provider, Z, who was already supporting Y, to help Y access some provision suitable to their needs.
25. Z started to provide four hours support, twice a week, in June 2023.
26. The Council sent the draft EHC Plan at the end of June 2023.
27. Mrs X asked school B and Z for more hours in July 2023. She stated Y was unlikely to be in school in September and only Z could work with Y.
28. The Council arranged for Y to attend another school, school C. Mrs X noted her concerns about school C. School C offered Y a place at the end of July 2023.
29. Mrs X continued to challenge the Council about the suitability of school C throughout August 2023. The Council issued Y’s final EHC Plan at the start of September 2023, naming school C. Mrs X challenged the Council and appealed to the Tribunal. The Council held a meeting and Mrs X confirmed Z was supporting Y four hours per day, three times per week. School C revoked its offer of a placement the day after this meeting. The Council agreed to revoke the EHC Plan, and work with school B to create a bespoke support package to suit Y’s needs.
30. Mrs X withdrew her appeal to the Tribunal in October 2023 after the Council agreed to revoke the September 2023 EHC Plan. The Council continued to work on amending the draft EHC Plan.
31. School B told the Council it would not pursue a bespoke support package for Y in November 2023. The Council agreed to provide Y with tuition until it could source an appropriate placement. The Council allocated a tuition provider.
32. The tuition provider started working with Y in December 2023. Z continued to provide transition support.
33. The tuition provider stopped supporting Y at the end of January 2024 following an incident. The Council confirmed it would consider an Education Other Than At School (EOTAS) package for Y.
34. Mrs X complained to the Council in February 2024. She complained about poor communication, lack of understanding and support for Y and delays in the EHC Plan review.
35. The Council issued the final EHC Plan the day after the complaint. Mrs X appealed to the Tribunal at the end of February 2024.
36. The Council responded to the complaint in March 2024. The response said the Council kept in regular contact with Mrs X. It said the Council understood Y’s needs and continued to support them. The Council confirmed it issued the final plan. It noted the delay was because Mrs X did not agree with the plan.
37. Mrs X continued to communicate with the Council. Mrs X approached the Ombudsman. At the end of July 2024, the Ombudsman directed Mrs X back to the Council to complete the complaint process.
38. Mrs X asked the Council to escalate her complaint to stage two. She also complained about social care matters. The Council merged the complaints and issued a final response in October 2024. The Council confirmed support was in place from Z, and then the tuition provider until it issued the final plan in February 2024. The Council accepted it did not send Mrs X a list of consulted schools and apologised for this lack of communication. The Council accepted the delays issuing the final plan was because Mrs X did not agree but accepted it did not issue the plan in the statutory timescales.
39. Mrs X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the Council to admit its errors.
40. In response to my enquiries the Council stated school B continued to provide support to Y until it secured tuition. It provided evidence of the funding and detailed communications with Mrs X.

My findings

Delays in the annual review process

41. School B completed the annual review meeting in May 2023. The Council had four weeks to tell Mrs X if it would amend the plan. It had a further eight weeks to issue the final amended EHC Plan. The Council should have issued the final EHC Plan in August 2023. The Council did issue a plan in September 2023 but revoked this plan.
42. The Council did not issue the final EHC Plan until February 2024, a six-month delay. The Council has accepted it did not adhere to the statutory timescales. This delay is fault. This frustrated Mrs X’s appeal right to the Tribunal.

Education and provision

43. Councils 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”.
44. The Courts have said it is for a council to determine what is ‘suitable education’. The Courts have said that the question is whether the education offered is reasonably possible or reasonably practicable for the child to access, not whether the parent or child have a reasonable objection to attending that school.
45. The Council confirmed school B provided support to Y through Z. Y knows Z well and the school considered this was the most appropriate support for Y at the time. Mrs X confirmed Y received this support, but said it was not education. The education package must meet an individuals needs. The school considered this provision was suitable for Y’s needs at the time.
46. The Council says the provision was able to meet Y’s needs and secure the provision set out in the EHC plan. The Council therefore found there was suitable provision available to Y. For this reason, it says it did not have a duty to provide an alternative education.
47. This is a complex matter. Y has complex needs and Mrs X expressed limits on Y’s ability to engage. The Council was entitled to decide that the provision offered to Y by school B was ‘suitable’ as Y was not able to engage with education. Mrs X told the Ombudsman Y has since had an educational psychologist report confirming Y cannot deal with education. The Council was not at fault.
48. When school B told the Council it would not continue to support Y in November 2023, the Council arranged tuition. Y accessed the tuition from December 2023 until an incident in January 2024. The Council was not at fault.
49. After the January 2024 incident, the Council issued the final EHC Plan. This plan was appealable to the Tribunal. Mrs X did appeal this plan. As set out above, the Ombudsman does not have jurisdiction to consider matters appealable to the Tribunal.

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Agreed action

50. To remedy the outstanding injustice caused to Mrs X by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Pay Mrs X £300 to recognise the distress, frustration and uncertainty caused by the delay in issuing Y’s EHC Plan.
51. The Council should provide us with evidence it has complied with the above actions.

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Decision

52. I have completed my investigation. I have found fault by the Council, which caused injustice to Mrs X.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman