Summary: Mr X complained the Council delayed reviewing his child’s Education, Health and Care Plan and failed to provide suitable education for his child. I found the Council delayed for 12 months in reviewing Mr X’s child’s Education, Health and Care Plan. I also found the Council failed to properly consider its Section 19 duty to provide alternative provision of education from 7 February 2024 to the end of the academic year 2023/2024. This caused distress and frustration to Mr X and potential lost educational provision for his child. The Council has agreed to apologise to Mr X, pay him £500 for the distress and frustration caused and £1,450 for his child’s potential missed education.

The complaint

1. Mr X complained the Council delayed in reviewing and amending his child’s Education, Health and Care Plan.
2. Mr X complained the Council failed to deliver suitable education and his child’s Education, Health and Care Plan provision since January 2024.
3. Mr X also complained the Council failed to complete an Occupational Therapist assessment, failed to respond to a request for a Personal Budget and generally failed to communicate effectively with him throughout the complaint.

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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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended).
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended).
6. 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)
7. 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)
8. 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)
9. 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

10. I have investigated Mr X’s complaints from 8 August 2023. The Ombudsman can only investigate matters a person brings to us within 12 months of the issuing occurring, unless there is good reason to investigate.
11. Mr X brought his complaint to the Ombudsman on 22 August 2024. Under normal circumstances, we could investigate all matters back to 22 August 2023. The Council produced a final EHC Plan for Mr X’s child on 8 August 2023. This means it is suitable to exercise our discretion to investigate any matters back to 8 August 2023 as this is a logical start point for our investigation.
12. The Ombudsman cannot investigate a complaint a council has not had an opportunity to consider. However, we can exercise our discretion to investigate matters in certain circumstances.
13. The Council declined to issue a Stage 2 complaint response to Mr X on 25 July 2024. This means the Council has not had opportunity to investigate matters after this date.
14. I have exercised my discretion to investigate any delays by the Council in review of Mr X’s child’s EHC Plan up to the date of my decision. This is because the fault and injustice caused through any delays would potentially have been ongoing since July 2024 without a change in circumstance. It is unreasonable to expect Mr X to raise a new complaint about the same issues.
15. I have also exercised my discretion to investigate Mr X’s child’s access to education up to the end of 2024. This is because the Council had concrete plans in place to provide Mr X’s child’s education up to the end of 2024. Any concerns Mr X may have about his child’s access to education in 2025 would be the subject of a new complaint. This is because there was a distinct change in circumstance at the end of 2025 which the Council should have opportunity to consider first.

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How I considered this complaint

16. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
17. Mr X and the Council had an opportunity to comment on my draft decision before I made my final decision.

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What I found

Rules and Regulations

EHC Plans

18. An Education, Health and Care Plan (EHC Plan) is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care.
19. Once the Council completes the EHCP it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
20. Councils should ensure an annual review of the child's EHC Plan is carried out within 12 months of the issue of the original plan or the completion of the last annual review. An annual review is completed when a council issues a letter advising of intention to cease, maintain or amend an EHC Plan following an annual review meeting.
21. A person can request an emergency/interim annual review meeting for their child’s EHC Plan. A council must consider a person’s request for an interim/emergency annual review meeting but does not have to agree to complete one.
22. The purpose of the annual review is to consider whether the special educational support and educational placement is still appropriate. The annual review is not complete until the council has decided to either maintain the Plan, cease the Plan or amend the Plan.
23. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. (s20 (10) Special Educational Needs and Disability Regulations 2014)
24. Where a 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. (s22 (1) & (2) Special Educational Needs and Disability Regulations 2014)
25. The Special Educational Needs and Disability Code (the Code) states if a council decides to amend the Plan, it should start the process of amendment “without delay”. (SEN Code para 9.176)
26. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the Final amended EHC Plan as soon as practicable and within eight weeks of the date it sent the EHC Plan and proposed amendments to the parents. (s22 (3) & (4) SEND Regulations 2014)
27. In 2022, the case of R (L, M and P) v Devon County Council said when a local authority proposes to amend an EHC Plan the regulation which requires the Council to notify a parent of its decision within four weeks and the regulation which set outs the process for amending the EHC Plan must be read together. This means the maximum time from the annual review meeting to final plan should be 12 weeks.
28. The Ombudsman can look at any delay in the assessment and creation of an EHCP as well as any failure by the Council to deliver the provision within an EHCP.

Alternative provision of education

29. 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.
30. 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)
31. 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))
32. 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)
33. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
34. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

35. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore councils should retain oversight and control to ensure their duties are properly fulfilled.
36. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when it is clear a child would be away from school for 15 days or more.
37. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

What happened

38. On 8 August 2023, the Council issued the first Final EHC Plan for Mr X’s child, who I shall refer to as Y. Within Y’s EHC Plan the Council named School 1, a mainstream primary school, in Section I as Y’s educational placement. The Council detailed that School 1 would provide all Section F provision in the EHC Plan for Y. The Council did not agree to a personal budget.
39. In October 2023, Mr X emailed the Council’s SEND Officer to advise Y’s EHC Plan was failing and wanted to discuss SEND school options. Mr X sent a further email on 9 November 2023 formally requesting an interim review of Y’s EHC Plan. The Council did not action this request.
40. On 29 January 2024, Mr X made a formal request of School 1 for an interim review of Y’s EHC Plan. School 1 passed this request to the Council on 30 January 2024. As part of this process, School 1 told the Council Y would not be in school for the foreseeable future. School 1 said it had discussed a reduced timetable or home tutoring with Mr X with the view to reintegrating Y into school. School 1 said Mr X rejected this saying he did not consider School 1 was the correct setting for Y.
41. The Council agreed to complete an interim annual review of Y’s EHC Plan on 15 February 2024.
42. On 4 March 2024, School 1 held an interim annual review for Y’s EHC Plan. The interim annual review meeting notes detail:
• Y had not attended School 1 since 27 January 2024.
• School 1 had provided Alternative Provision of education every Monday since 15 January 2024.
• Mr X considered home education the most suitable option for Y at this time but needed financial support or home tutoring provision to help with this.
• Mr X wanted to explore formal Education Otherwise Than At School (EOTAS) options.
• A recommendation to amend Y’s EHC Plan.
43. School 1 placed the EHC Plan annual review notes on Y’s SEND file for the Council to access on 5 March 2024.
44. The Council held a meeting with Mr X on 19 April 2024 to discuss a personal budget for Y’s EOTAS. The Council agreed to take a proposal to panel on 20 May 2024.
45. From 22 April 2024, after the Easter break, School 1 offered continuation of the Monday sessions along with a one hour ELSA sessions each week. Y did not engage with the Monday sessions after the Easter break. School 1 offered one day of alternative provision through horse riding from 2 May 2024.
46. On 20 May 2024, the Council considered Y’s EOTAS personal budget request at panel. Mr X had presented a detailed timetable for Y’s education to support the request for a personal budget. The Council’s EHC Plan Co-ordinator agreed in principal to proceed with EOTAS but said the timetable presented by Mr X was very intense for a child with Y’s needs and should be reduced. The panel asked the EHC Plan Co-ordinator to ensure the EHC Plan provisions matched the EOTAS provision and produce a revised timetable which was more suitable.
47. Mr X made a formal complaint to the Council on 18 June 2024. Mr X said:
• The Council had delayed reviewing his child’s EHC Plan.
• The Council had agreed in principle to provide EOTAS for Y but had not put this in place or provide suitable updates.
• Y had been out of school since January 2024 with little to no support or provision.
48. The Council provided a Stage 1 complaint response on 23 July 2024. The Council said:
• It upheld Mr X’s complaint about delays in the EHC Plan review process because it had not finalised the EHC Plan.
• It upheld Mr X’s complaint about failure to provide EOTAS because it had not been able to implement a package that meets Y’s needs.
• It upheld Mr X’s complaint about poor communication and said this was because of staff shortages.
49. Mr X sought consideration of his complaint at Stage 2 of the Council’s complaints process on 23 July 2024. Mr X said the Council’s complaint response did not provide a resolution to the delays in completing the EHC Plan process or lack of education for Y. Mr X also said in May 2023 Y was assessed as needing an Occupational Therapy assessment which has never happened.
50. On 25 July 2024, the Council declined to progress to Stage 2 of its complaints process because it would not add anything to the complaint.
51. On 7 August 2024, the Council issued a notification letter to Mr X advising of its plan to amend Y’s EHC Plan.
52. The Council held a second panel meeting for Y’s EOTAS on 12 August 2024. The Council considered the amended EOTAS request and timetable to begin in September 2024. The Council agreed to proceed with the EOTAS request with the intention of Y returning to school in a specialist setting at the start of 2025. The panel agreed to the proposal.
53. The Council began to provide the EOTAS personal budget funding to Mr X in September 2024.
54. The Council issued draft EHC Plans for Y on 25 September 2024, 18 October 2024 and 25 October 2024.
55. On 5 February 2025, the Council produced a final EHC Plan for Y.

Analysis

Failure to consider interim review of EHC Plan

56. A person can request an interim/emergency review of their child’s EHC Plan outside the normal annual review timescales. Mr X formally requested an interim annual review of Y’s EHC Plan on 9 November 2023.
57. When a council receives a request for an interim annual review of an EHC Plan it must consider this request and decide whether to complete this annual review. A council is under no obligation to complete an annual review but must at least show that it has considered this request.
58. The Council failed to consider Mr X’s request for an interim annual review for Y from 9 November 2023 until 14 February 2024. The Council only considered the request for an interim annual review following School 1 putting forward a request on 30 January 2024.
59. The Council was at fault for failing to consider Mr X’s request. This fault caused Mr X to experience frustration and uncertainty for three months about whether the Council would review Y’s EHC Plan.

EHC Plan review delays

60. The Council issued a final EHC Plan for Y on 8 August 2023. In normal circumstances, the Council would have 12 months from this date to complete the EHC Plan annual review process. This process includes holding a meeting and issuing a notification letter about its decision to maintain, amend or cease Y’s EHC Plan.
61. The Council accepted School 1’s request for an interim annual review for Y’s EHC Plan on 14 February 2024. There is no legislative timescales in which a council needs to hold an interim annual review meeting following a request; this should be done as soon as practicable. In the circumstances, the Council accepted the request and the annual review meeting was held within a suitable timeframe.
62. Once the annual review meeting took place on 4 March 2024, the Council should have kept to the normal annual review timescales. This meant the Council had four weeks to send a notification letter about its decision to maintain, amend or cease Y’s EHC Plan; this was 1 April 2024.
63. The Council failed to meet this timescale and instead only issued a notification to amend to Mr X on 7 August 2024. This was fault.
64. Since the Council agreed to amend Y’s EHC Plan, it had eight weeks from the notification letter to produce a final EHC Plan for Y; this was 2 October 2024.
65. The Council failed to meet this timescale and has not issued a final EHC Plan for Y to the date of this decision. This was fault.
66. The Council has delayed outside the statutory timescales in reviewing Y’s EHC Plan by nearly nine months. This has caused Mr X frustration and distress and has caused Y the lost opportunity of having up-to-date suitable educational provision detailed in their EHC Plan.

Personal Budget request

67. A person can make a personal budget request through the annual review process of an EHC Plan. Mr X made a personal budget request to the Council in January 2024. This was considered by the Council alongside the annual review process through two panel meetings in May 2024 and August 2024.
68. Under normal circumstances, a council should only approve a personal budget request as part of a child’s EHC Plan. Since the Council did not include a personal budget in the August 2023 EHC Plan it had no duty to provide a personal budget for Y until it produced an amended final EHC Plan.
69. Since the Council has not yet finalised the EHC Plan following the March 2024 annual review meeting, there was no obligation on the Council to provide a personal budget.
70. However, the Council has provided a personal budget for Y’s education from September 2024. The Council has done this despite not finalising Y’s EHC Plan. While there is fault with the Council delaying in finalisation of the EHC Plan, I would not find fault with the Council making a personal budget available to Y sooner. This has prevented an ongoing injustice to Y through a loss of educational provision.

EOTAS

71. It is not the role of the Ombudsman to investigate the actions of a school. I cannot find the Council at fault for failing to provide education for Y before it was made aware that Y was not attending school. Although Y stopped attending school on 27 January 2024, the Council first became aware of this on 30 January 2024.
72. The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness or ‘otherwise’, the Council must intervene and make such arrangements itself. The duty arises after a child has missed fifteen days of education either consecutively or cumulatively.
73. On 30 January 2024, School 1 confirmed Y had stopped attending and would not be attending for the foreseeable future. It would have been clear to the Council on this date that Y would be absent from school and would miss more than 15 days of education.
74. The Council’s section 19 duty arose when it became aware that Y would be absent from school for more than 15 days, from the sixth day of Y’s absence. The Council had a duty to consider its Section 19 duty for Y from the sixth day following 30 January 2024, this was 7 February 2024.
75. To fulfil its Section 19 duty, a council does not necessarily have to provide education for a child. However, a council must consider a child’s individual circumstances and decide what action it should take to ensure a child is accessing suitable education. A council may decide education is best accessed through a school or that alternative provision of education arranged by a school is suitable education for a child.
76. The Council has no evidence of it considering Y’s access to education until 14 May 2024. It was only on this date, in preparation for the panel meetings, the Council has detailed its consideration that Y should access EOTAS.
77. Despite deciding on 14 May 2024 that Y would benefit from accessing EOTAS, the Council failed to consider the suitability of the alternative provision of education on offer by School 1 and failed to put in place any EOTAS until September 2024.
78. Overall, the Council had not input over Y’s education from 7 February 2024 until the end of the academic year. While the Council considered Y’s individual circumstances on 14 May 2024 and recommended EOTAS, it failed to put any action into place until September 2024. The Council failed to meets its Section 19 duty and this was fault.
79. Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision put in place, a child’s individual needs and whether they are in a key academic year.
80. I have considered Y’s individual circumstances and our guidance on remedies. It is important to consider School 1 made available one day of education for Y through alternative provision from 7 February 2024 to 19 April 2024. School 1 then made available one day and one hour of education through alternative provision for Y from 22 April 2024, increasing to 2 days and one hour from 2 May 2024, to the end of the academic year. While this does not remove the Council’s fault, it does mitigate the injustice to Y as the school ensured some education was provided. Whether this education was suitable to meet Y’s needs is in doubt because the Council failed to consider this.
81. It is also important to consider that Y’s EHC Plan was specific that all EHC Plan provision should only be provided in a school setting. This EHC Plan was not intended to be provided out of school. This meant the alternative provision of education providers could not provide this EHC Plan provision. Mr X made the decision that Y should no longer attend School 1 in January 2024. Mr X also provided input that he did not consider Y was ready to access a specialist setting and that home education was the most suitable option in March 2024. Since Mr X made the decision that Y should not attend school, I cannot find the Council at fault for failing to provide EHC Plan specifically designed for delivery in a school setting.
82. I consider, the Council should pay Mr X £900 per term for Y’s potential missed education caused by the Council’s failure to consider its Section 19 duty. This balances Y’s loss of all education with the alternative provision made available by the school. This award would total £1,450 from 7 February 2024 to the end of the academic year.
83. From September 2024, the Council provided EOTAS to Y as agreed by panel. This EOTAS funding was agreed by the Council having considered Y’s individual circumstances and needs and was fulfilment of the Council’s Section 19 duty. I do not find fault with the Council for its actions from September 2024 to the end of 2024 in providing education for Y.

Occupational Therapy Assessment

84. Mr X said Y’s 2023 EHC Plan required an Occupational Therapist assessment.
85. The EHC Plan produced by the Council in August 2024 make no reference to Y needing an Occupational Therapist assessment. Since this is not detailed as a provision in Y’s EHC Plan, the Council has not duty to provide an Occupational Therapist assessment for Y.
86. If Mr X considered Y needed this as part of the assessment for Y’s original EHC Plan, I cannot address this in this complaint. Mr X would have been aware of this more than 12 months back from bringing his complaint to the Ombudsman.

Communication with Mr X

87. In the Council’s Stage 1 complaint response it upheld Mr X’s complaint about poor communication. The Council apologised to Mr X for this poor communication. The Council also committed to conducting a review of practice guidance and procedures to improve communication and reminder staff of its procedural expectations.
88. The Council has already accepted fault and taken suitable action to address this aspect of the complaint and I do not consider further recommendations are appropriate.

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Action

89. Within one month of the Ombudsman’s final decision the Council should:
• Provide an apology and a payment of £500 to Mr X for the distress and frustration caused by the Council’s delays in considering holding an interim annual review for Y and delays outside the statutory timescales in reviewing Y’s EHC Plan totalling 12 months.
• Provide a payment of £1,450 to Mr X for Y’s potential missed education from 7 February 2024 to the end of the academic year 2023/2024 caused by the Council’s failure to suitably consider is Section 19 duty.
90. The Council should provide us with evidence it has complied with the above actions.

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Decision

91. There was fault leading to injustice. As the Council accepted my recommendations, I have completed my investigation as I consider that a suitable remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman