Summary: We have found fault with the Council for delays during the annual review of Mrs X’s son’s (Y’s) Education, Health and Care Plan, failing to properly consider its section 19 duty and poor communication with Mrs X and Y’s school. The fault resulted in the delay of Mrs X’s appeal rights, caused Y to miss education and caused avoidable distress for the family. The Council has agreed to apologise and pay Mrs X a symbolic payment in recognition of the injustice caused.

The complaint

1. Miss X complained the Council delayed her son’s EHC Plan review and did not secure adequate alternative provision for him when he stopped attending school. She said this delayed her rights of appeal and meant her son has not received a suitable education.

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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 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)
3. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
4. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), 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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What I have and have not investigated

7. We cannot look at the Council’s decisions related to the content of the EHC Plan as Miss X has used her right of appeal. We have looked at the delay in issuing a final amended Plan following the annual review as this is not appealable.
8. We have investigated how the Council considered its Section 19 duty, and the alternative provision secured for Y.

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How I considered this complaint

9. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
10. Miss 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

Law and guidance

EHC Plans and annual reviews

11. 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.
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. 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)
13. 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.

General section 19 duty

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. [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.
15. 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)

What happened

Annual review

16. Miss X’s son, Y has SEN and an EHC Plan. In January 2024, the Council a carried out an annual review. The Council issued a draft amended EHC Plan in April 2024 and a SEND Panel in May considered a change of type of setting from mainstream to specialist. The Panel decided that a mainstream setting could meet Y’s needs. Six months after the annual review meeting, the Council issued Y’s amended final EHC Plan in June, naming Y’s existing mainstream school.
17. Mrs X appealed this to the SEND Tribunal in August 2024.

Alternative provision

18. Miss X said after prolonged bullying, Y stopped attending school in February 2024.
19. In April, Miss X told the Council that Y was not attending school. She told the Council the school had put in place alternative provision and tuition (4 hours of maths and English per week) for him which was working well.
20. Miss X had requested an additional 2 hours a week of science tuition, but the school was unable to provide due to funding. The Council contacted the school and asked it to put in a request for additional funding for the Council to consider. The school did this in April 2024.
21. The Council discussed the request for additional funding at the Panel meeting in May. The Panel agreed the additional funding but failed to inform Mrs X or the school. Mrs X was only made aware of this at a meeting with the Council and school in July 2024. Therefore the funding, and therefore the additional provision was never implemented. Mrs X complained about the Council’s poor communication and the Council apologised.
22. Mrs X brought her complaint to the Ombudsman.

Update

23. The Council SEND panel re-considered a change of setting for Y in November 2024. It agreed that a specialist placement could be suitable and can be explored.

My findings

Delayed annual review

24. The Council delayed issuing Y’s final amended EHC Plan after the January 2024 annual review. Case law states that this should be within 12 weeks. It took 6 months. This delayed Mrs X’s right of appeal by 3 months.
25. The Council has agreed to apologise to Mrs X and to make her a symbolic payment of £300 in recognition of the delay.

Alternative provision

26. The Council became aware that Y was not attending school in April 2024. The school had been delivering 4 hours of English and maths tuition a week since February 2024.
27. In April 2024, the Council should have considered its section 19 duties. Although it was in contact with Y’s school, I have seen no evidence that it properly considered whether Y was receiving a suitable education or whether he needed additional provision. The delivery of alternative provision is the Council’s responsibility under section 19. The Council’s lack of involvement securing AP may account for the low-level provision as schools are limited as to what they can offer within budget.
28. Four hours a week is not considered a suitable full time education. Therefore, I have found the Council at fault for failing to properly consider its section 19 duties. As a result, Y missed out on education between April 2024 and February 2025.
29. The Council has agreed to apologise and pay Mrs X £900 per term in recognition of the missed education. This equates to £2250.

Poor communication

30. Mrs X requested additional provision, namely science-based tuition, and the school applied for additional funding to deliver this. The Council’s failure to communicate the agreement of funding in May 2024 meant that Y missed out on additional tuition that the Council agreed he needed.
31. The Council has agreed to apologise to Mrs X and pay £500 in recognition of the poor communication and the avoidable distress and uncertainty this caused Miss X and her son.

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Agreed action

32. Within 4 weeks, the Council has agreed to:
1. Apologise to Mrs X for the delay in issuing Y’s EHC Plan, failing to properly consider its section 19 duties resulting in missed education, and for the poor communication of its decision to fund additional science tuition.
2. Pay Mrs X £300 in recognition of how the delay in issuing Y’s EHC Plan delayed her rights of appeal.
3. Pay Mrs X £2250 in recognition of the missed education.
4. Pay Mrs X £500 in recognition of the distress and uncertainty caused by the Council’s poor communication.
33. The Council should provide us with evidence it has complied with the above actions.

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Decision

34. I have found the Council at fault for:
• delay in issuing Y’s EHC Plan which delayed Mrs X’s appeal rights.
• failing to properly consider its section 19 duty which caused Y to miss out on education when he was out of school.
• poor communication that it had agreed additional funding for alternative provision causing Mrs X and Y distress and uncertainty.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman