Summary: Miss X complained about how the Council reviewed and amended her child, W’s, Education, Health and Care (EHC) Plan. Miss X also complained the Council failed to provide W with education when they struggled to attend school. The Council was at fault in how it carried out W’s EHC Plan reviews and made changes to their Plan. The Council was also at fault in how it decided whether it should arrange alternative education for W. We cannot say, even on balance, that this fault meant W missed out on education. The faults caused Miss X upset, frustration and uncertainty. To remedy her injustice, the Council will apologise and pay Miss X £700. The Council will remind staff they must keep suitable records of their decision-making on alternative education provision.

The complaint

1. Miss X complained about how the Council reviewed and amended her child, W’s, EHC Plan and about a lack of alternative provision and special educational provision when W stopped attending school full time. Specifically, Miss X said:
• The Council delayed reviewing W’s EHC Plan in March and October 2023;
• The Council took too long to issue W’s amended EHC Plan;
• When W began to struggle to attend school, the Council failed to arrange alternative education provision, which also meant it failed to secure the special educational provision in their EHC Plan; and
• She was unhappy the Council did not respond to all the issues she raised in her complaint.
2. Miss X said this caused her and W distress and impacted on W’s development.

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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. 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.
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)
6. 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

7. I have considered:
• all the information Miss X provided and offered to discuss the complaint with her representative, Ms Y.
• the Council’s comments about the complaint and the supporting documents it provided; and
• the relevant law and guidance and the Ombudsman's guidance on remedies.
8. Ms Y 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

Relevant law and guidance

Education, Health and Care Plans

9. 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.
10. The sections include:

• Section B: 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 educational placement 

11. We cannot direct changes to sections B, F or I. Only the SEND Tribunal or the council can do this. 

Annual reviews

12. 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.
13. 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) 
14. 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.

Special educational provision and personal budgets

15. 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).

Alternative provision

16. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative provision.
17. 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)
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)

Complaints handling

19. The Council operates a two stage complaints procedure. Its policy states that its stage two response will look at how the Council’s stage one response dealt with the person’s complaint. It will also respond to any further related issues the person raised after submitting their stage one complaint. The policy says the Council will not consider new issues at stage two.

What happened

20. W is a child who previously attended a mainstream school (school A). In January 2023, W’s emotional wellbeing began to decline. School A held an annual review meeting with Miss X in mid-March 2023, which found:
• The school had tried strategies to help W in school without success;
• School A had created a timetable which mixed teaching and out of school provision; and
• Miss X had decided to get assessments of W’s speech and language needs and sensory needs. The school said it would arrange a new meeting when the assessments had been completed.
21. Miss X says she told the Council she wanted W to move schools at that meeting.
22. There is no evidence school A sent the annual review paperwork to the Council after the meeting.
23. In mid-July, Miss X told the Council school A was not meeting W’s needs.
24. Over the summer holidays, school A offered to arrange a tutor for W. In late July, school A asked Miss X if she had thought more about a one-to-one tutor for W and said it could put it in place by September 2023.
25. A few days later, Miss X asked the Council to fund an unregistered provider of alternative provision (provider B), including tuition.
26. In late August, the Council refused to fund provider B. It said school A was available and accessible to W and that it would consider other options once W’s annual review had been completed. It told Miss X provider B would deliver tutoring, but school A had already made that offer which Miss X had not accepted. School A later agreed to fund provider B itself, but W could not start attending immediately.
27. Miss X agreed with school A that W would only attend on a part-time basis; three mornings per week from September 2023 onwards. On the days W was not in school, they continued to receive provision from the off-campus providers they went to in the summer 2023 term.
28. After Miss X obtained the assessments of W’s needs, school A held an emergency annual review meeting. The meeting was in mid-October 2023 and a Council officer attended. The meeting heard the school was concerned it could not meet W’s needs in a mainstream setting. School A sent the annual review paperwork to the Council in late November. It included an account of the March 2023 meeting.
29. Around the same time, Miss X complained to the Council. She said she had two issues she was unhappy about. First, she was complaining about the length of time the Council had taken to carry out W’s 2023 annual reviews. Miss X said second, she was complaining about how long it had taken to prepare a draft amended EHC Plan for W after those reviews. The Council responded to Miss X’s complaint in late December.
30. The Council issued its decision to amend W’s EHC Plan after the October 2023 annual review meeting in mid-January 2024. It also consulted with Miss X’s preferred school, school C.
31. W began attending provider B for 12 hours per week in late January 2024. They stopped attending school A. The Council told me school A agreed to have oversight over the provision provider B delivered.
32. Miss X was unhappy and asked for a stage two response for her complaint a week later. Her complaint now included that the provision from provider B had been delayed because of the Council.
33. In early February, school C told the Council it needed to assess W further before deciding whether to offer them a school place. At the end of the month, school C said it would give its answer by late March 2024.
34. In late February, the Council responded to Miss X’s complaint. It said:
• Miss X had raised new concerns about W’s alternative provision and special educational provision in her stage two response. It had not investigated those matters because they were not part of Miss X’s first complaint. However, it noted W had an offer of full-time education at school A, which it was satisfied they could access;
• School A had arranged alternative provision and put W on a part-time timetable to help them reintegrate back into class;
• It was satisfied school A could provide the special educational provision in W’s EHC Plan;
• It was considering her request for a new school as part of the annual review process;
• It was sorry for the delay finalising W’s amended EHC Plan; and
• It offered £300 in recognition of the delay finalising W’s EHC Plan.
35. School C confirmed it would offer W a place in early May 2024. A week later, the Council considered the offer at a decision-making panel, which noted school A agreed it could not meet all of W’s needs. The panel approved school C.
36. The Council issued W’s amended EHC Plan a day later. It named school A until September 2024, when W would move to a specialist school. Miss X appealed sections B and F to the SEND Tribunal.

My findings

What I have and have not investigated

37. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months from first having notice of something to complain to us about what a council has done. “First having notice” is the wording used in our legislation. It means the point in time when we decide the person should have known enough to complain. (Local Government Act 1974, sections 26B and 34D, as amended)
38. Miss X complained about matters dating back to March 2023 and received the Council’s stage two response to her complaint in February 2024. Her professional representative, Ms Y, did not complain to the Ombudsman until July 2024. I have chosen to investigate the period from March 2023 because Ms Y had good reasons why she did not complain to us earlier.
39. 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. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
40. For this reason, we normally end our investigations on the date the organisation issued its final response to a person’s complaint. The Council issued its stage two response to Miss X in February 2024. However, given Miss X complained about how the Council amended W’s EHC Plan, I have chosen to investigate up to May 2024. This incorporates the period up to when the Council issued W’s amended EHC Plan.
41. Miss X did not complain to the Council about W’s special educational provision or alternative provision. I have chosen to investigate that part of Miss X’s complaint because the Council chose to address W’s alternative provision as part of the complaint it did receive. It would be unnecessarily onerous to ask Miss X to make a new complaint to the Council about W’s alternative provision and special educational provision when the Council has already offered a partial response.

Alternative provision and special educational provision

42. Section 19 of the Education Act 1996 says councils must make alternative provision available to a child if because of illness, exclusion or other reasons, they would not receive a suitable education. The test councils must consider is whether the school a child is on roll at is “available and accessible” to them. We expect councils to consider if they need to arrange alternative provision when they first hear a child is not receiving a full-time education, and to keep that decision under review.
43. The Council maintains it did not owe W the duty to arrange alternative provision, and therefore that it had secured the special educational provision in W’s EHC Plan, because school A remained available and accessible to them.
44. However, the Council was at fault in how it came to that decision. I come to this conclusion because:
• As I set out in the section below, the Council did not complete the March 2023 annual review process. This meant it did not see records of the March 2023 meeting until late November. The meeting heard W’s needs had escalated and the strategies school A had tried had not worked. The meeting also heard W was on a timetable which mixed school with other provision. As the Council did not complete the annual review it missed an opportunity to consider if school A remained available and accessible to W.
• In July 2023, the Council heard from Miss X that school A had said it could not meet W’s needs. This was the first time the Council knew about W’s attendance issues. The October 2023 annual review meeting also heard that school A was concerned about whether it could meet W’s needs. Both events should have prompted the Council to consider if school A was available and accessible to W. It did not do this.
• The Council did not exercise any oversight over W’s education in the 2024 spring and summer terms, when W attending provider B. While the Council told me school A oversaw provider B’s provision, it was aware W was not receiving a full-time education during that period. It should have maintained oversight over W’s education so that it could keep its decision that it did not owe them the duty to arrange alternative provision under review.
45. Although I find the Council at fault, I cannot say, even on balance of probabilities, that had it acted without fault, it would have accepted it needed to arrange alternative provision for W.
46. W remained on roll at school A and although it raised concerns about meeting W’s needs, and although W stopped attending in January 2024, school A did not tell the Council it could not meet any of W’s needs. I also note W continued to attend school A for part of the week between March 2023 and December 2023. It is possible that had the Council acted without fault, it may have still concluded school A remained available and accessible to W, if it were to take further steps to help W reintegrate and to meet their needs fully.
47. In addition, a council may not owe a child the duty to arrange alternative provision if it is satisfied their school is putting suitable alternative education in place. The Council first became aware of W’s attendance issues in July 2023. From the start of the next school year (September 2023) to the end of the period I have investigated, W had some level of alternative provision put in place by school A. School A also offered to arrange tuition in summer 2023, but Miss X preferred provider B, although it could not begin to support W straight away. That was Miss X’s choice, and we would not criticize a council for refusing to arrange education from an unregistered provider when it was satisfied a suitable offer from a registered setting was available. It is therefore possible that had the Council properly considered whether W was receiving a suitable education, it would have concluded the off-site provision already in place or offered to Miss X, alongside provision at school A, was suitable.
48. As a result, the injustice stemming from the fault was uncertainty and upset for Miss X.

Annual reviews and EHC Plan amendments

49. School A held W’s annual review meeting on the Council’s behalf in mid-March 2023. The Council was therefore required to issue its decision to amend, maintain or cease W’s EHC Plan by mid-April 2023. The Council did not issue any decision after the March meeting. This was fault.
50. School A held a second annual review meeting in mid-October 2023 to consider the outcome of the new assessments Miss X had sought. The Council should have issued its decision by mid-November 2023. It delayed by two months when it issued its decision to amend in mid-January 2024. This delay was fault.
51. Caselaw sets out that if, after an annual review, a council decides to amend a child EHC Plan, it must issue the final amended Plan within 12 weeks of the annual review meeting. For W, this would have been by early January 2024. The Council did not issue W’s amended EHC Plan until mid-May 2024, over four months later. Some of the delay was due waiting for school C to carry out assessments of W’s needs, a matter outside of the Council’s control. I also note that once school C confirmed it could offer W a place, the Council considered the offer and issued the final Plan promptly. Nonetheless, the Council must comply with the statutory timescales for reviewing and amending a child’s EHC Plan and the Council’s failure to do so was fault.
52. The faults in this section delayed efforts to find a new school for W and delayed Miss X’s right to appeal the setting named in W’s amended EHC Plan. They also caused Miss X avoidable frustration and uncertainty about whether, but for the delay, W could have moved to a new school sooner.
53. The Council is currently carrying out a review of its annual review processes to identify areas for improvement. Given this, I have not made a further recommendation.

Complaints handling

54. Miss X’s stage one complaint was clear she was unhappy with two issues; about the 2023 annual reviews and the time the Council was taking to complete a draft amended EHC Plan. She added to her stage two complaint that the Council had delayed W receiving alternative provision from provider B.
55. The Council did not consider Miss X’s concerns about W’s alternative provision because she had not included it in her stage one complaint. Those concerns were substantially different from those she made in her stage one complaint, so the Council acted in line with its policy and was not at fault.

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Action

56. Within one month of the date of my final decision, the Council will take the following actions.
1. Apologise to Miss X for the uncertainty, upset, frustration she felt because of the faults set out in this decision. The Council should also apologise for delaying efforts to find W’s new school and delaying Miss X’s right of appeal as a result of the issues with its annual reviews of W’s EHC Plans. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
2. Pay Miss X £700 in recognition of her injustice. If the Council has already paid Miss X the £300 it offered in its stage two complaint response, it should instead pay Miss X £400.
3. Remind officers they should keep suitable records of how they come to a decision on whether the Council should arrange alternative provision for a child. The records should show the Council considered all the relevant evidence before coming to its decision.
57. The Council should provide us with evidence it has complied with the above actions.

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Decision

58. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman