Summary: Mr X complained the Council delayed finalising his child’s amended Education, Health and Care (EHC) Plan and provided no support when his child could not attend school. This caused distress and meant the family had to fund therapy for their child. The Council was at fault over its communication and delays. The Council was not at fault over the alternative provision it put in place. The Council agreed to apologise and provide a symbolic financial remedy for the distress and uncertainty caused.

The complaint

1. Mr X complained the Council delayed finalising his child’s amended Education, Health and Care (EHC) Plan when his child could not attend school due to the emotional impact of a bullying incident.
2. Mr X said his child received no support during this time, so the family had to fund therapy. He also said the uncertainty resulting from the Council’s delays caused the family distress.
3. Mr X wanted the Council to compensate the family for the distress its delays caused and reimburse costs he incurred for his child’s therapy.

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

10. 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. 
11. 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)  
12. 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. 

13. 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) Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

Alternative provision

14. 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 education provision.
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’)

What happened

18. I have summarised below some key events leading to Mr X’s complaint. This is not intended to be a detailed account of what took place.
19. The Council’s children’s services contacted Y’s school in July 2023 after a telephone call from Mr X, who had reported bullying towards Y as a safeguarding issue. Mr X considered Y would benefit from going into a different class, and said he was working with the school to ensure Y was safe.
20. Y’s school emailed children’s services on 14 July 2023 confirming completion of its investigation into the allegation Y made. It said this was unsubstantiated and the school was confident Y was safe in their current class.
21. Mr X was dissatisfied with the outcome and asked the school to keep Y apart from the other pupil. In response, the school offered to place Y in a group with pupils working at a similar level who Y had been in class with before, with a teacher it said Y knew and liked. Mr X asked the school to put Y in another group, but the school did not consider Mr X’s requested group was suitable. Mr X made a formal complaint to the school.
22. Mr X exchanged emails with Y’s school on 5 September 2023, sharing a report from Y’s therapist.
23. The school acknowledged Y’s anxiety after the breakdown of a friendship, but still considered a return to school was suitable. It offered a different class if Y did not want to return to the same one, but it could not offer the class Mr X had asked for. The school said it would like Y to return, and it would support Y to feel safe.
24. Mr X then copied the Council into the email exchange. He told the school and the Council he was removing Y from school until his complaint was resolved and the school can offer Y a safe environment. Mr X said it was not his intention to permanently remove Y from school and asked for home education in the meantime.
25. The Council asked the school to be updated following completion of the next stage of the complaint process, and for the school to set work for Y to complete at home in the meantime.
26. Mr X asked the Council to consult a different school on 11 September, with a view to naming them in Y’s EHC Plan instead of the current school. Mr X did not believe the current school supported Y to access education.
27. The Council consulted the school as Mr X requested, but it said it could not support Y’s learning needs.
28. The school confirmed to the Council on 22 September that Y was receiving two, one-hour sessions of tutoring a week. Y’s parents wanted more, but the school could not afford it. It asked the Council about accessing more funding.
29. On 26 September 2023, Mr X told the Council he asked the school to increase Y’s tutoring from two to six hours a week. Mr X thought it would be best for Y to receive alternative education at home until September 2024 to allow Y time to recover mentally and emotionally, with help from a therapist.
30. The Council suggested Y remain on roll at the current school and receive alternative provision, then have a gradual return to school when Y felt able. Mr X agreed.
31. The school then sent the Council details of the alternative provision Mr X wanted Y to have. The school agreed to Y having an extra six hours tutoring a week, but thought it should be kept under termly review, rather than just agreeing for Y to be out of school for a year. It said Y had already asked to come into school for a swimming session.
32. The Council agreed, it said the longer Y was out of school the more difficult reintegration would be. It said it would put forward the request for six extra hours tutoring a week for the current term, and then review the situation.
33. The Council confirmed additional funding for more tutoring sessions on 2 October 2023.
34. Mr X complained to the Council on 5 March 2024. He said the Council agreed to fund their chosen alternative provision for 20 hours a week until Easter 2024, and that it would agree to extend this two weeks before Easter half term if Y needed to continue with it. However, this had not happened.
35. Mr X also said Y’s school reviewed Y’s EHC plan on 1 February 2024, and Mr X proposed how he would like Y’s support to continue. Mr X and the school both sent this to the Council, but got no response. Mr X chased the Council in February without response. He said not having the alternative provision agreed was causing Y anxiety and impacting his mental wellbeing. He asked the Council to extend it.
36. The Council emailed Mr X following a meeting to discuss Y’s support on 8 April 2024. It said it would fund tutoring for 20 hours a week until the end of summer 2024. It also agreed to take Mr X’s request to its SEN Panel for Education Otherwise Than at School (EOTAS) starting from September 2024.
37. The Council then responded to Mr X’s complaint on 9 April. It said it would work closely with Mr X to develop a comprehensive EOTAS package for Y, including trauma therapy. It also said Mr X could claim mileage for taking Y to tutoring sessions.
38. Mr X asked to escalate his complaint on 27 June. He said issues remained unresolved and the Council had not contacted him. He was still waiting for the Council to reimburse therapy and fuel costs dating back to April 2024.
39. The Council sent its final complaint response on 26 July. It said it issued Y’s draft amended EHC Plan on 15 April, including sending the case to its SEN Panel to approve EOTAS. Mr X sent an update from the tutoring provider on 1 May. He was concerned the package was taking too long to put in place. An officer got back to Mr X to set up a meeting to discuss this. The Council issued another amended draft EHC Plan on 21 June and met with Mr X on 28 June to discuss his outstanding concerns. The Council then issued Y’s final amended EHC Plan on 5 July 2024.
40. The Council said it correctly responded to Mr X’s earlier complaint, but acknowledged it had not completed actions within agreed timescales. It apologised, and said it was pleased Y’s provision was now in place. It said it passed the reimbursement of therapy costs to SEN finance for payment and its transport department was working on reimbursement of mileage.

My investigation

41. Mr X told me they removed Y son from school on 5 July 2023, after a discussion with their doctor following a bullying incident at school.
42. Mr X took Y to therapy in August 2023, costing £50 a session. Y attended 35 sessions before the Council agreed to fund them (costing £1,750 in total). The Council agreed to fund term-time therapy sessions from September 2024.
43. Mr X said Y started receiving tutoring for two hours a week on 14 September 2023. This increased to eight hours a week on 2 October and again to twenty hours a week from 6 November 2023.
44. The Council said it was unaware Y was not attending school in July 2023. It received an email from Mr X on 5 September 2023 advising he was removing Y from school temporarily while a dispute with the school was resolved. He asked for home education for Y in the meantime. The school offered extra support and put home learning in place with a tutor for core subjects. The Council then increased Y’s funding for more tuition sessions. Y was also accessing a therapist, but Y’s parents said Y was not ready to attend any education setting.
45. The Council said it had not received a request from Mr X to reimburse Y’s earlier therapy costs, but it will consider doing so if Mr X provides evidence.

Analysis

46. Mr X is unhappy Y was not supported in July 2023 when the incident with another pupil occurred. While I found Mr X contacted the Council’s children’s services team in July 2023 about the school complaint, this was regarding bullying. Mr X reported it as a safeguarding issue. This was in internal matter for the school to investigate, not the Council. I have not seen evidence the Council was aware Y was out of school until September 2023. I therefore did not find the Council at fault here.
47. The Council initially agreed funding for alternative provision when it knew Y was out of school. It also later agreed EOTAS.
48. I have considered whether the alternative provision the Council put in place in the interim was sufficient, and suitable for Y’s needs.
49. When the Council agreed alternative provision in September 2023, it said it would review this at the end of the term. Mr X told me the Council increased Y’s tutoring to eight hours a week in October, and to twenty hours a week by 6 November 2023. Alternative provision should be equivalent to full-time education. 20 hours weekly tuition is less than the time Y would spend in school each week. However, the tuition was one to one. The statutory guidance recognises one to one support is more intensive, and does not need to be for as many hours. On the evidence seen, the Council provided suitable alternative education to meet Y’s needs, and therefore met its duties in this regard.
50. I found there was a lack of communication by the Council in early 2024 about Y’s future package of education. This was in terms of extending Y’s alternative provision and amending Y’s EHC Plan to include EOTAS. This caused Y and the family distress and uncertainty, at what was already a distressing time.
51. I found once Mr X complained, the Council extended Y’s tutoring sessions. It was also then in regular contact with him about amending Y’s EHC Plan, including meeting with him to discuss his concerns and the next steps.
52. Y’s school held the EHC Plan annual review meeting on 1 February 2024. The Council can ask the school to hold the review, but it retains responsibility for the process. The Council should have issued a decision on whether to amend Y’s EHC Plan within four weeks of the review meeting. On the evidence seen, there were communication issues, and the Council did not issue a draft amended EHC Plan until 15 April. That was fault. The Council should then have issued Y’s final amended EHC Plan within a further eight weeks, but there was another delay.
53. I found this did not cause any further significant injustice in terms of Y’s educational provision. Y was out of school at the time, but receiving suitable alternative provision. Mr X asked the Council for alternative provision until the end of the 2024 academic year, with EOTAS to start in September 2024. Despite the delay finalising the amended EHC Plan, this is what ultimately happened. However, as above, I recognise the delays caused unnecessary and avoidable distress and uncertainty for Y and the family.
54. After reviewing Y’s EHC Plan and issuing an amended one, the Council also agreed to fund term-time therapy sessions to support Y’s educational needs.
55. The Council told us Mr X had not asked it to reimburse earlier therapy costs, but it will consider doing so once it has considered the evidence from Mr X.

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Agreed Action

56. Within four weeks of my final decision, the Council will:
• Apologise to Mr X and Y for its poor communication in early 2024 and for its delays amending Y’s EHC Plan. It should acknowledge the distress and uncertainty this caused.
• Make a symbolic financial payment to Mr X in the sum of £500 to recognise the distress and uncertainty Y and the family suffered.
• Consider reimbursing Mr X for Y’s earlier therapy costs, upon receipt of evidence.
57. The Council should provide us with evidence it has complied with the above actions.

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Final Decision

58. I found the Council at fault over its communication and delays. It agreed to remedy the distress and uncertainty this caused. The Council was not at fault over the alternative provision it put in place.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman