Summary: Mrs X complained that the Council did not provide suitable education for her child when they were out of school and delayed carrying out a review of her child’s Education, Health and Care Plan. As a result her child missed out on education and has fallen behind their peers. We have found the Council at fault as there was a period where it should have put in place education for Mrs X’s child. The Council also delayed carrying out an annual review. The Council agreed to apologise and make payments for the loss of education and distress caused.

The complaint

1. Mrs X complained the Council did not put in place suitable education and provision for her child when they were out of school. Mrs X also complained the Council delayed carrying out an annual review of her child’s Education, Health and Care Plan.
2. Mrs X said her child missed out on education and support they should have received and this had a negative effect on their mental health.

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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 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)
4. 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)
5. 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)

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What I have and have not investigated

6. I have not investigated whether Mrs X’s child received suitable provision before March 2023. Mrs X asked us to start our investigation from December 2021. These events happened over two years before Mrs X complained to us. Mrs X explained she did not complain sooner as she was attempting other resolution methods first, acting as a carer and experienced personal issues which affected her own mental health. Mrs X also said she tried to give the Council the chance to rectify things and had to deal with lots of management leaving. While I empathise with Mrs X’s position, I can see no good reasons why Mrs X could not have complained to us sooner about events before March 2023.
7. I have exercised discretion to consider matters from March 2023, even though this is slightly over a year before Mrs X complained to us.
8. I have ended my investigation at the end of the 2024 school year. This was also around the same time as the end of the complaints process. If Mrs X has further concerns about events from September 2024 onwards, she would need to complain to the Council in the first instance.

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How I considered this complaint

9. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance. I sent a draft of this decision to Mrs X and the Council for comments.
10. 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 found

Law and guidance

Alternative Provision

11. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
12. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
13. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
14. The statutory guidance 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”.
15. 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))
16. 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)
17. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
18. 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)

Education Health and Care Plans

19. 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. 
20. 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)  
21. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.
22. A child’s parent or the young person has the right to request a Personal Budget when the council has completed an EHC needs assessment and confirmed it will prepare an EHC Plan. They may also request a Personal Budget during a statutory review of an existing EHC Plan.
23. The final allocation of a Personal Budget must be sufficient to secure the agreed provision specified in the EHC Plan and must be set out as part of that provision.
24. 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) 
25. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
26. 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.
27. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer.  

What happened

28. Mrs X’s child, Y, has special educational needs. In January 2023, the Council issued a new EHC Plan for Y. At this time Y was not attending school and received some tutoring.
29. In March 2023, Y returned to school on a reduced timetable of 13 hours per week and one hour alternative provision from a provider called participation dogs. Mrs X said Y did not engage with the participation dogs provision as this was unsuitable and on the school site which Y would not visit.
30. In June 2023, Y started to withdraw from school and by July 2023 Y was not attending school. In July 2023, the Council held a multi-agency meeting to discuss Y. It agreed at the meeting Y would start school in September 2023 for the new school year on a reduced timetable.
31. In September 2023, Y only attended school once and did not continue with their outside provision.
32. In November 2023, the Council held a phased transfer annual review as Y was due to start post-16 education in September 2024. Following this the Council issued a draft EHC Plan for Y on 15 December 2023.
33. In early January 2024, Mrs X sent the Council her comments on Y’s draft EHC Plan. Mrs X disagreed with the content of the draft EHC Plan.
34. In early February 2024, Mrs X made a formal complaint to the Council. Mrs X complained:
• The Council did not tell her within four weeks of the annual review meeting whether it was amending Y’s EHC Plan.
• The Council did not provide Y with full time education after they could not attend school in December 2021.
• The Council did not support Y with a transition back to school in March 2023 and had not put in place the special educational provision in Y’s EHC Plan.
35. In mid-February 2024, the Council held an emergency phase transfer annual review. At this meeting the Council agreed to provide Mrs X with a personal budget following her request for one. This was to last until July 2024. The Council paid the personal budget to Mrs X as a direct payment. The Council agreed to reimburse Mrs X £2,080 for tuition at just over £300 per week which she had paid.
36. In early March 2024, the Council responded to Mrs X’s complaint. The Council said Y’s school should have helped reintegrate Y back into school as it was providing Y’s education. The Council apologised for delays around completing Y’s phased transfer annual review and for the fact Mrs X’s caseworker did not contact her for several months after being allocated her case. The Council said it would reimburse Mrs X for tutoring she had paid for and put in place a personal budget of £15,000 until the end of the school year for Y.
37. Mrs X asked the Council to consider her complaint at the next stage of its procedure shortly after receiving the Council’s response in early March 2024.
38. The Council provided its stage two response in April 2024. The Council said:
• Y had not accessed their entitlement to full time education for a significant period of time both before and after their EHC Plan was finalised. Y was not provided with full time education as Mrs X said they could not cope with 25 hours of education. The Council partially upheld this complaint.
• It was not possible to identify alternative provision providers which Y could access for 25 hours per week, so the Council tried to offer Y something they could engage with and build on.
• Since September 2023 sourcing suitable provision for Y drifted and neither the school nor Council took responsibility for putting in place provision for Y.
• It was unfortunate an emergency annual review was not held in September 2023, when Y stopped attending school again.
• It upheld the fact it failed to hold phased transfer annual review in line with statutory timescales.
39. On 16 May 2024, the Council send a draft EHC Plan to Mrs X.
40. After further contact from Mrs X the Council provided its final response to her complaint in early June 2024. The Council said it:
• Acknowledged Y had not received suitable full time provision and upheld this part of Mrs X’s complaint.
• Should have held an emergency annual review after Y did not attend school in September 2023. The Council said this was a missed opportunity to put in place a revised plan for Y.
41. The Council sent Mrs X Y’s final EHC Plan on 20 June 2024. Mrs X disagreed with the content of the EHC Plan and is going through mediation with the Council.

Analysis

Education and special educational provision

42. In March 2023, Y returned to school. At this time Y was getting part-time education at school alongside one hour of participation dogs. The Council has recognised in its complaint response Y did not receive suitable full time education. This was fault. As a result, on balance I consider Y would not have received all of the special education provision in their EHC Plan as they were not receiving suitable full-time education.
43. At the end of the summer school term in 2023, Y’s attendance began to decrease. While the Council did hold a meeting in July 2023 to discuss the next school term, Y stopped attending school in September 2023 altogether. At this point the Council did not take any steps to consider providing alternative education or ensure the special educational provision in Y’s EHC Plan was in place. This was fault. As a result Y missed out on education and provision in their EHC Plan.
44. Y continued to receive no education until February 2024, when the Council agreed to put in place a personal budget and pay this to Mrs X as a direct payment.
45. While the Council has paid Mrs X £2,080 for tutoring she commissioned for Y, this was at £300 per week so only lasted for around 7 weeks. Mrs X said this related to tutoring she commissioned in January 2024. There is still a term of school from September 2023 to the end of December 2023, when Y was without any education or special educational provision.
46. Our guidance on remedies recommends that where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss. 
47. In coming to a suitable figure for the period between March 2023 and July 2023 I considered Y received part-time education so received some education, although not full-time. In coming to a suitable figure for the period between September 2023 and February 2024, I considered Y was a child with special educational needs, who was also in a critical period of education. I also considered Y did not receive any education or special educational provision between September 2023 and December 2023, and only some tutoring from January 2024, which the Council refunded Mrs X for.

Annual review

48. The Council held Y’s annual review in November 2023. It did not issue a final EHC Plan until June 2024. This was fault. As this was a phased transfer annual review to post-16 education the Council should have issued Y’s final EHC Plan by the end of March 2024.
49. After holding the annual review in November 2023, it issued a draft EHC Plan in December 2023 but then decided to hold a further annual review in February 2024. Following this it did not issue a final EHC Plan until June 2024. It was clear during this process that Mrs X disagreed with the content of Y’s EHC Plan. By not issuing the EHC Plan within the statutory timescales has delayed Mrs X’s appeal right to challenge the EHC Plan. In addition, it has meant there was less time for Mrs X and the educational provider Y was due to attend in September 2024 to work through any issues to help Y start. As Y was a child who had not regularly been at school it would have been important to leave as much time as possible to take steps to help Y start the placement.
50. Normally we would make a service improvement for the Council in a case such as this where there has been delays carrying out an annual review. However in another case we recently investigated we already recommended a service improvement covering this area. It is therefore right that we give the Council the opportunity to improve its service.

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Agreed Action

51. Within one month of my final decision the Council agreed to carry out the following:
• Apologise to Mrs X for the above faults. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Mrs X, for the benefit of Y’s education:
1. £900 to recognise the loss of education and special educational provision between March 2023 and July 2023.
2. £2,400 to recognise the loss of education and special educational provision between September 2023 and February 2024.
• Pay Mrs X, £400 to recognise the avoidable distress she experienced as a result of the time Y was without education and for the delays finalising Y’s EHC Plan following the annual review.
52. The Council should provide us with evidence it has complied with the above actions.

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Decision

53. I have completed my investigation and found the Council was at fault and this caused injustice. The Council agreed to the above actions to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman