Summary: The Council was at fault for delay completing a review of Y’s EHC plan in 2022, but this did not cause significant injustice. The Council was also at fault over its communication with Mrs X following the 2023 review. This delayed Y receiving tutoring by two months and meant Y missed educational provision in that time. The Council agreed to provide a financial remedy to recognise this injustice.

The complaint

1. Mrs X complained about failings in the Council’s handling of her child, Y’s, Education, Health and Care (EHC) plan and education provision.
2. This includes failing to provide education for six months, failing to follow the EHC plan for six months, failing to finalise two EHC plans on time, and failing to inform them about panel decisions.
3. Mrs X said the missed education and support resulted in Y failing their General Certificate of Secondary Education (GCSE) Maths exam twice. They also lost their right of appeal, and Mrs X had to cut down her work hours to part-time to support Y.

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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 Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 
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. 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)
8. 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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How I considered this complaint

9. As part of the investigation, I considered the complaint and the information Mrs X provided.
10. I made written enquiries of the Council and considered its response along with relevant law and guidance.
11. 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

Special educational needs

12. A child or young person with special educational needs may have an 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. 
13. 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)  
14. 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. 

15. 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) 
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. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.
17. For young people moving between post-16 institutions, the council should normally complete the review process by 31 March where a young person is expected to transfer to a new institution in the new academic year. However, transfers between post-16 institutions may take place at different times of the year and the EHC Plan review process should take account of this. In all cases, where a young person is planning to transfer between one post-16 institution and another within the following 12 months, the council must review and amend, where necessary, the young person’s EHC Plan. This must be at least five months before the transfer takes place.  
18. There is a right of appeal to the Tribunal against a council’s:

• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue a EHC Plan following an assessment;
• 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;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment; and
• decision to cease to maintain an EHC Plan.

Alternative provision

19. 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.
20. 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)
21. 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)
22. 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)
23. 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’)

What happened

24. I have summarised below some key events leading to Mrs X’s complaint. This is not intended to be a detailed account of what took place.
25. Y started college in September 2022.
26. The Council met Mrs X and Y for Y’s annual review on 15 December 2022. Mrs X asked for an Educational Psychology (EP) assessment, and for Speech and Language Therapy (SALT). She also asked if Y could have one-to-one support with Maths.
27. The Council has a panel of professionals (the Panel) that make decisions on all aspects of EHC plans and educational provision. The Panel met on 25 April 2023 to consider Mrs X’s requests. It considered there was no evidence Y had cognitive difficulties, and that Y’s social communication needs were in line with their Autism Spectrum Disorder (ASD). It also considered there was no evidence Y needed one-to-one support in Maths, and the college could give the support needed. The Panel decided to refuse Mrs X’s requests.
28. The Council wrote to Mrs X on 26 June 2023 to confirm the Panel decision. The Council concluded that, since there were no changes to Y’s needs or provision, it did not propose to make any changes to Y’s EHC plan. Mrs X did not appeal.
29. The Council reviewed Y’s EHC plan again in October 2023, and met with Mrs X and Y on 17 October. Y’s attendance was only 34%, and Y said the college was not meeting their needs. Y wanted to change courses and have bespoke education offered by a different college. It was agreed Y would leave college immediately. A social worker said they would contact Mrs X to arrange a meeting to discuss the next steps.
30. Mrs X emailed the Council after the meeting. She said the current college was not supporting Y’s emotional and social wellbeing, but Y was terrified at the thought of another mainstream college. Mrs X said the proposed new college was the only place able to meet Y’s complex needs.
31. The Council then referred Y’s request to the Panel on 24 October. The Panel said it did not have enough information. It noted Y appeared to attend some aspects of current college life but seemed to be on a course they could not engage with. It wanted advice about the suitability of the proposed new college.
32. The Council consulted with the proposed new college, but it was full and oversubscribed for the current academic year. It placed Y on its waiting list and said it could reconsider offering Y a place in spring or summer 2024.
33. A SEND careers advisor tried to telephone Mrs X to discuss the next steps on 8, 21, and 23 November but got no answer. They tried again on 18 December but again got no answer.
34. Y emailed the Council on 16 January 2024 to explain their struggles at the current college and with mainstream provision. Y told the Council what happened to them at the college, why it was unsuitable, and why they could not return. Y mentioned a lack of understanding about their needs, a lack of effective support, and some teachers offering no support at all as they were unaware Y had an EHC Plan. Y said the proposed new college was the only place that can meet their needs, and asked the Council to refer them for a place there.
35. The Council told Y a SEND advisor tried to call Mrs X about the proposed new college. It confirmed it would consider Y’s request, subject to the Panel’s agreement. It offered some interim tuition in the meantime if Y would find this helpful.
36. The SEND advisor also emailed Y asking to meet to explore the outcomes Y wanted to achieve. They confirmed the dates they tried to contact Mrs X.
37. Mrs X replied agreeing to a meeting on 25 January. However, she was concerned neither the Council nor college checked on Y’s wellbeing since the review in October. She said she had no missed calls from the SEND advisor and questioned why the Council did not email her when it could not get through by phone.
38. On 29 January, the Council told Y its panel would consider their request for a new college tomorrow. It also said it contacted the new college, but they are full and would only look at placements after Easter. It asked if Y had given any thought to its offer of tuition. Y asked for tutoring in Maths and Coding.
39. The Council confirmed to Y it found a tutoring provider on 14 February 2024, and they would be in touch soon to confirm the details. Tutoring started on 6 March 2024.
40. The Council updated Y about the new college placement in April. It said they would be in touch after the Easter break. The Council also asked Y whether they wanted to sit exams that year. Y said they did not feel ready for the Maths exam, but praised the work the tutor was doing.
41. Y had a meeting with the new college in May 2024, and the college offered Y a place on 15 July. Y started at the new college in September 2024.
42. The Council held a review meeting with Y in November 2024. It noted Y was doing well, had settled in, and was starting to engage.

My investigation

43. The Council told me Mrs X removed Y from the first college as she was unhappy with the support in place. The SEND careers advisor made several attempts to contact Mrs X to discuss alternatives, but could not get a response from her. Y remained on roll at the college until February 2024 and it remained open to them. The college was responsible for maintaining contact and wellbeing checks in this time.
44. The Council secured alternative provision for Y from February 2024. Y then started at a second college in September 2024.
45. The Council said it did not tell Mrs X when Y’s case went to the Panel to consider the second college due to an oversight. It has since created a dedicated post 16 team focusing on people in sixth forms and colleges. This ensures more timely responses and changes to plans, plus greater knowledge of the post 16 landscape.

Analysis

46. The Council reviewed Y’s EHC Plan in December 2022. It should have completed the review, including its decision on whether to amend the plan, within four weeks of the review meeting. It took the Council over six months. That is a significant delay and is fault.
47. However, Y started college in September 2022, and there was no evidence the placement was unsuitable, or not meeting Y’s needs, until the next review in October 2023. There was no missed educational provision during the delay, as the Council considered Y’s child’s needs had not changed, and that the college could provide sufficient support. I therefore did not find the delay completing the 2022 review process caused Y significant injustice.
48. I appreciate Mrs X said the lack of support meant Y failed two Maths exams. However, I have not seen clear evidence the Council’s delay, or refusal of one-to-one Maths support, caused Y to fail the exams. The Panel considered Mrs X’s request, but decided the college could give suitable support without needing one-to-one help. That is a decision the Panel was entitled to reach, and I cannot question it.
49. And while the Council’s delay completing the review delayed Mrs X’s right of appeal, she did still have the right to appeal if she disagreed with the Council’s decision not to amend Y’s EHC plan.
50. At the next review in October 2023, Y made clear to the Council they did not feel supported at the first college, and felt unable to access the support in their EHC plan while there. Y wanted to attend a new college. The records of the review meeting state the Council agreed Y would not return to the first college, and it would contact Mrs X to discuss the next steps.
51. The Council referred Y’s request for a new college to the Panel. The Council should have told Mrs X about the outcome of the Panel meeting on 24 October straight away, and that it was seeking more information from the new college. It did not update her until January 2024. Mrs X said she lost her right of appeal because of this omission. A right of appeal arises where the Council refuses to amend an EHC plan after a review. On the evidence seen, that was not the case here. The Council was not refusing to amend the plan or name the new college. It needed more information to reach a decision. It consulted the new college, but it was full. The Council later agreed to the new college when it had a place available, and it amended Y’s EHC plan. While the Council should have told Mrs X earlier, I did not find fault in the decision-making and consultation process itself.
52. I appreciate the Council tried telephoning Mrs X three times in November, and once in December 2023 to discuss the next steps after the October review meeting. However, it should have contacted her in writing as well. It would have been good practice to do so straight after the reviewing meeting, but it certainly should have done so after the first two unsuccessful telephone calls in November. It knew Y was out of college and not receiving the support in line with their EHC plan, so it should not have let the matter drag on. That was fault.
53. The fault did not impact Y starting at the second college, because it was full and did not have places until the next academic year. But it did delay the Council’s search for tutoring in the interim.
54. I found that once Y got in touch with the Council in January 2024, the Council was then proactive in looking for suitable tutoring as alternative provision while it considered Y’s request to move college.
55. Y confirmed they wanted tutoring at the end of January 2024. The Council found a tutoring provider in mid-February, and a tutor started working with Y in early March. I therefore found it took the Council about a month to put tutoring in place.
56. If the Council had contacted Mrs X in writing in November 2023, as it should have, it could have put tutoring in place starting in January 2024. On balance, I therefore consider it is more likely than not that Y missed out on about two months of educational provision because of the delay.
57. Since Mrs X’s complaint, the Council has created a dedicated team for post 16 education. It said this has improved its response times. I consider this to be consistent with what the Ombudsman would recommend. I therefore do not make any further service improvement recommendations.

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Agreed Action

58. Within four weeks of my final decision, the Council will:
• Apologise to Mrs X and Y for not contacting Mrs X in writing about the next steps after the October 2023 review meeting, and for Y’s resulting missed educational provision.
• Pay Y £600 in recognition of two months missed educational provision.
59. The Council should provide us with evidence it has complied with the above actions.

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Final Decision

60. I found the Council at fault for delay completing the review of Y’s EHC plan in 2022, but this did not cause significant injustice. I also found the Council at fault over its communication with Mrs X following the 2023 review. I found this delayed Y receiving tutoring by two months and meant Y missed educational provision in that time.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman