Summary: Mrs X complained the Council failed to deliver appropriate education and specialist services to her daughter, Y, and did not review her Education, Health and Care Plan in statutory timeframes. We found the Council at fault for a lack of appropriate provision and not reviewing Y’s plan within the correct timeframe. This caused Mrs X avoidable distress and meant her daughter did not receive education she was due. To remedy this injustice, the Council has agreed to apologise to Mrs X and Y and make a payment to Mrs X.

The complaint

1. Mrs X complains the Council has failed to deliver appropriate education to her daughter Y, and has failed to deliver specialist services included in her Education Health and Care (EHC) Plan since September 2023. She also complains that annual reviews of the plan have not been carried out within statutory timeframes.
2. Mrs X says this has caused distress and anxiety to both her and Y. She says that Y has missed out on educational provision she is due.

Back to top

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. 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)
5. 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.
6. 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(1), as amended)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I have and have not investigated

8. Paragraph four applies to this complaint. My investigation begins in September 2023. This is more than 12 months before Mrs X completed the Council’s complaints process in December 2024. However, I am satisfied it is appropriate to include this period in my investigation as tutoring for Y had just begun.
9. My investigation ends in December 2024 when the Council completed its complaint process and signposted Mrs X to us.

Back to top

How I considered this complaint

10. I have considered all the information Mrs X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
11. Mrs X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

Back to top

What I found

Special educational needs

12. A child with special educational needs (SEN) may have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them.
13. The EHC Plan is set out in sections which include Section F, which is the special educational provision needed by the child or the young person. 
14. 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)  
15. 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.
16. 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 Plan review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

Reviewing EHC Plans

17. 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) 
18. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.

Section 19 alternative education duty

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.
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)

Available and accessible

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)

Focus report

22. 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
23. We made recommendations, the most relevant of which in this case, are set out below. 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; and
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions.

24. 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.

What happened

25. I have set out below a summary of the key events. This is not meant to show everything that happened.

Background and context before the period of investigation

26. Y had an EHC Plan that was first finalised in September 2022. The plan named a local independent special secondary school (School A) which Y began attending.
27. Y’s plan was designed to be delivered in a school setting and by school staff. Amongst other things, Section F of the plan stated Y required:
• one to one mentoring sessions at least twice weekly for 30 minutes each to work on her skills to regulate and express her emotions appropriately;
• one to one work focussing on social skills and managing social situations as part of a social skills programme;
• one to one adult support in class to help deal with emotional triggers and learning as part of tasks; and
• one to one support at least once per week for 20 minutes to focus on developing her independent life skills and live safely.
28. In April 2023, School A told the Council it could not meet Y’s needs. It gave notice that it would end Y’s placement on 2 June 2023.
29. The Council organised tutoring for Y beginning 19 July 2023.
30. In the search for a new education placement, the Council sent consultation letters to seven providers at the end of August 2023. None of these said they could offer Y a place.

September to December 2023

31. From September 2023 onwards, Y was scheduled to receive 10 hours tutoring per week. This was broken down as two hours per day, five days per week. It covered English and Maths.
32. Y did not access any tutoring for a week late in September due to illness. Y began to struggle to access and attend the tutoring in place during parts of October and increasing in frequency in November. At the end of November, the Council cancelled tuition due to non-engagement.
33. The Council sent three consultation letters to other education providers in November and December.

2024

34. An annual review of Y’s EHC Plan was scheduled for 21 February but was rescheduled to 9 April due to officer leave.
35. Tuition began again with a new tutor on 16 April. This was again for ten hours per week covering English and Maths.
36. Y’s tutor emailed the Council on 10 June to say she had concerns over Y’s repeated absences and that Y was struggling to engage. By the end of June, the tutoring agency asked the Council if it wanted to continue due to disengagement and frequent absences. Tutoring continued.
37. The Council sent consultation letters to four more education providers in July.
38. Y began to attend an alternative provision setting for two days per week from September onwards, Provider A.
39. Mrs X complained to the Council on 5 September. She said Y had received no education provision from the Council in three years.
40. The Council replied on 10 October. It said:
• it was clear Y’s case had not been given the priority it should causing significant gaps in her education provision;
• there had been a lack of communication, provision and support for Y;
• different caseworkers had been allocated but little progress made with poor transitions between workers;
• it was only able to partially uphold her complaint as Y’s EHCP was not in place until September 2024 and that before that time it had not been officially aware of any attendance issues from school (this date was incorrect and should have read 2023).
41. Unhappy with the response, Mrs X escalated her complaint on 15 October. She said the needs of Y’s EHC Plan had never been met and the tutoring was not done by a specialist which Y needed.
42. The Council sent its stage two response on 3 December. The letter:
• disagreed with the stage one response and instead fully upheld her complaint;
• repeated the Council’s previous apology;
• said it understood Y’s time at Provider A combined with the tutoring in place was working well; and
• signposted her to us if she remained unhappy.
43. Mrs X then brought her complaint to us.

Analysis

Context

44. Section F of Y’s EHC Plan lists various aspects of provision. The plan in place at the time (from September 2022) was designed to be delivered in a special school environment.
45. The Council had a duty to ensure Y’s section F provision was delivered as far as it was possible to do so outside of a school setting.
46. The Council also had a duty under S19 of the Education Act 1996 (the Act) to ensure Y received a suitable alternative education if she was not attending her specified placement or any placement.
47. 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.

September to November 2023

48. Evidence shows the 10 hours tutoring in place had been organised at the beginning of July. It began on 19 July 2023.
49. In my enquiries to the Council, I asked if it considered any education in place during this time delivered provision set out in Y’s EHC Plan or appropriate alternative education, in line with its duties. I asked it to provide me with evidence of this.
50. In response, the Council said it believed tutoring had met three of the 15 parts listed in Y’s Section F provision.
51. I have considered the relevant evidence on file. I am satisfied there is no evidence the tutoring in place would have fully delivered Y’s section F provision. Whilst I acknowledge Y’s difficulties in engaging with tutoring, the Council did not explore any other options that may have been to able deliver Y’s required provision. Not delivering the Section F provision was fault on the Council’s part. It caused avoidable distress and frustration for Mrs X and meant Y missed out on provision she was due. I have made a recommendation below to remedy the injustice caused.
52. In response to me, the Council’s stance on alternative education during this time was contradictory. The Council said it considered the tutoring met the requirement for it to deliver an education equivalent to full time. However, it then apologised that Y’s tutoring would not be considered full time and it did not provide a full scope of education for Y.
53. The Council should have reviewed Y’s tutoring to consider whether it was equivalent to full time or whether there were any circumstances which meant tutoring was not the appropriate provision to deliver her alternative education. Instead, the Council cancelled the tutoring with nothing else in place and no plans as to what might happen next. I am satisfied this lack of consideration is fault. It led to uncertainty as to whether Y could have accessed a different form of alternative education which would have been more available and accessible to her. It also caused distress and frustration for Mrs X. I have made a recommendation below to remedy this injustice.

December 2023 to April 2024

54. When the Council cancelled Y’s tutoring due to lack of engagement on 28 November 2023, it should have begun to explore other possible options. In response to my enquiries, the Council said Y’s social worker identified barriers to learning and that it had taken a lot of time to identify a new tutor. I have seen no evidence of discussions or of the search for a new tutor.
55. Y’s annual review on 9 April 2024 shows the Council contacted an agency who said it would arrange a tutor to be allocated to her in due course. Tutoring began the next week.
56. On the balance of probabilities, I am satisfied it is more likely than not that the Council took little action to secure any education for Y during this period, until the annual review was held in April 2024. This lack of action and Y’s lack of any education is fault. It meant Y was without any education from 29 November 2023 until 16 April 2024 when tutoring began again. It caused avoidable distress, frustration and uncertainty to Mrs X. It also meant Y had no opportunity to attempt to engage with any form of education or access any Section F provision. I have made a recommendation below to remedy this injustice.

April to July 2024

57. The Council’s responses referred to earlier regarding Section F and alternative education also cover this period.
58. Tutoring began again at the same level as before, two hours per day, five days per week. The Council has provided no rationale for setting it at this amount. There is no evidence the Council proactively checked the progress of the tutoring or considered if a second round of tutoring was the best option for Y. She again began to have difficulties accessing it during June 2024.
59. As with the period from September to November 2023, I am satisfied the Council did not fully deliver Section F provision for Y during this time. This was fault. It caused Mrs X distress and frustration and again meant that Y did not receive provision she was due. I have made a recommendation below to remedy this injustice.
60. In terms of alternative education, I acknowledge the Council organised a female tutor to help Y engage. However, I am satisfied in the circumstances of this complaint, there was again no consideration as to whether what was on offer was available and accessible to her or provided an education equivalent to full time. Not doing so was fault. It added to Mrs X’s frustration and caused uncertainty as to whether the tuition was suitable for Y and delivered a full-time equivalent education. I have made a recommendation below to remedy this injustice.

September to December 2024

61. The Council’s responses referred to earlier regarding Section F and alternative education also cover this period.
62. Y began to attend Provider A in September 2024. She attended for two days per week. In addition to this she was offered some tutoring from November 2024 onwards. Y settled into her time at Provider A and there were no reported issues with non-engagement.
63. Y’s EHC Plan was updated in November 2024, but Section F remained largely identical. In response to my enquiries, the Council said it considered Provider A delivered one of the 15 parts listed in Y’s Section F provision during this time period.
64. As with the previous tutoring periods, I am satisfied the Council did not fully deliver Section F provision for Y during this time. This was fault. It caused Mrs X distress and frustration and again meant that Y did not receive provision she was due. I have made a recommendation below to remedy this injustice.
65. Whilst I acknowledge Y’s engagement at Provider A, there is no evidence to show the Council reviewed whether it considered this to be equivalent to full time in conjunction to any offers of tutoring during this time. I am therefore again satisfied the Council should have taken a more proactive stance in looking at its offers of alternative education whilst it tried to find Y a new school. Not doing so was fault. It again added to Mrs X’s frustration and caused uncertainty as to whether the tuition was suitable for Y and delivered a full-time equivalent education. I have made a recommendation below to remedy this injustice.

Annual reviews of Y’s EHC Plan

66. Mrs X complained annual reviews had not been carried out within the correct timeframe.
67. Before the period of this investigation, School A had done an annual review of Y’s EHC Plan on 30 January 2023. This meant the next review should have been completed by the end of January 2024.
68. Evidence shows the Council said on 1 December 2023 that an early annual review could be held after social workers had said they believed the current EHC Plan did not reflect Y’s progress. This never happened.
69. Instead, a review meeting was arranged for 21 February 2024 but did not take place until 9 April. When it did take place, Mrs X said in her stage one complaint to the Council, that she was never provided with the proper paperwork from it, frustrating her right of appeal. The stage one response said it would progress matters by 18 October 2024. In response to my enquiries the Council said it had carried out a full review on 15 November 2024 with the decision to maintain the EHC Plan.
70. The Council should have reviewed Y’s EHC Plan by the end of January 2024 and sent Mrs X notice of what its decision was and of her rights of appeal to the SEND Tribunal. Not doing so was fault. This added to the distress and frustration she already felt and meant it was unclear what the Council’s position on Y’s plan was at a time when she was not receiving formal school-based education. I have made a recommendation below to remedy this injustice.

Remedy recommendations

71. The Council has recently agreed to recommendations in other relevant but unrelated complaints about its EHC Plan annual reviews and its alternative education provision. With this in mind, I do not intend to make any other service recommendations at this time.

Back to top

Agreed action

72. To remedy the injustice caused by the faults I have identified, the Council has agreed to take the following action within four weeks of the date of my final decision:
• apologise to Mrs X and Y for the identified injustice;
• pay Mrs X £1300 for the lack of Y’s Section F provision and appropriate alternative education from September 2023 to the end of November 2023;
• pay Mrs X £2900 for the lack of Y’s Section F provision and any alternative education from the end of November 2023 to mid-April 2024;
• pay Mrs X £1650 for the lack of Y’s Section F provision and appropriate alternative education from mid-April 2024 to July 2024;
• pay Mrs X £1200 for the lack of Y’s Section F provision and appropriate alternative education from September 2024 to December 2024; and
• make a symbolic payment of £300 to Mrs X for the distress and frustration caused in the Council’s handling of Y’s case.
73. The apology written should be in line with the Ombudsman’s guidance on remedies on making an effective apology.
74. Payments made are in line with the Ombudsman’s guidance on remedies.
75. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

76. I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.

Back to top

Investigator's decision on behalf of the Ombudsman