Summary: Ms X complained the Council failed to deliver education to her child Z when he was out of school. Ms X also complained about how the Council handled Z’s Education, Health and Care Plan. The Council was at fault. The Council delayed reviewing the Education, Health and Care Plan. The Council did not respond to Ms X’s communication properly. The Council failed to make sure Z received suitable education. The Council should apologise to Ms X and make a symbolic payment to her to remedy the injustice caused.

The complaint

1. Ms X complained that her child, Z, was out of school from January 2023 to February 2024 and received minimal education during this time.
2. Ms X also complained the Council failed to review Z’s Education, Health and Care (EHC) Plan from 2023 onwards. Subsequently she said the Council failed to deliver provision described in the plan.
3. Ms X said the Council mishandled her complaint, and its communication with her was consistently poor.
4. Ms X said fault by the Council has resulted in deterioration in Z’s mental and emotional wellbeing, and that of her whole family.

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The Ombudsman’s role and powers

5. 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)
6. 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.
7. Section 26D of the Local Government Act 1974 gives us the power to investigate matters coming to our attention during an investigation if we think a member of the public has or may have suffered an injustice as a result.
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
9. 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)

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What I have and have not investigated

10. I investigated from January 2023 to February 2024.
11. In January 2023 the Council became aware that Z stopped going to school, following an incident at school earlier in the month.
12. In February 2024 a final EHC Plan was issued, and Ms X had a right of appeal to the Tribunal about her complaint points. There is no evidence to suggest Ms X could not have used her appeal rights in February 2024.
13. The role of children’s social care is not considered in this investigation. A separate investigation into that has taken place.
14. Complaint handling has not been considered as part of this investigation. This is because Ms X made a joint complaint to the Council about education and social care. In another investigation carried out by the Ombudsman we identified fault by the Council in its complaint handling about these matters. We also made a recommendation to remedy that fault. I will not duplicate findings or recommendations about complaint handling, in this investigation.

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How I considered this complaint

15. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
16. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Law and guidance

17. 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.
18. 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)
19. 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)
20. The DfE guidance (Working together to improve school attendance) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 
21. 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
22. 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.

23. 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.
24. 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.
25. 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)  
26. 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. 

27. 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) 
28. 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.
29. 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.
30. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.
31. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
32. The council can refuse a request for a reassessment if less than six months have passed since a previous EHC needs assessment. It can also refuse a request if it does not think it is necessary, for example because it does not feel a child or young person’s needs have changed significantly.
33. The council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request. If the decision is not to reassess, the council must also provide information about the right to appeal that decision to the Tribunal.
34. If the council agrees to an EHC needs reassessment, it has 14 weeks to issue the final EHC Plan from the date it agreed to reassess to the date it issues the final amended EHC Plan.
35. For young people with an EHC Plan, preparation for transition to adulthood must begin from year nine (age 13 to 14). Transition planning must consider the young person’s needs as they move towards adulthood. It should plan to support their choices for further education, employment, career planning, financial support, accommodation, and personal budgets where appropriate.  
36. There is a right of appeal to the Tribunal against a council’s:

• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue a EHC Plan following an assessment;
• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment; and
• decision to cease to maintain an EHC Plan.

37. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 

What happened here

38. The following is a list of key events. It is not a list of everything that happened.
39. Z is a disabled young person. He has a diagnosis of autism spectrum disorder and a variety of related needs. Z’s first EHC Plan was created in 2018.
40. In January 2023 an incident took place at school. Ms X said this resulted in Z being unable to return to school.
41. A few days after the incident Z’s EHC Plan annual review took place at school.
42. At a meeting at the start of February the Council, school and Ms X discussed the incident. An action plan was created. The action plan included Z returning to school.
43. Ms X wrote to school and the Council to say she did not feel Z was able to return to school, due to the impact the incident had had on his mental health. She asked for the amended EHC Plan.
44. School told Ms X there had not been any changes made to the EHC Plan.
45. About a week later, toward the end of February, Ms X made a request to the Council for an EHC Plan reassessment to take place.
46. During March Ms X maintained contact with the school and the Council. She attended meetings at the school.
47. In April Ms X discussed the request for a reassessment with the Council, again. She formally submitted a second request, in writing. The Council acknowledged this two days later.
48. In May the Council said an emergency review meeting took place. The Council said changes were made directly to the draft EHC Plan document.
49. During May, June and July, Ms X said she tried several times to send her comments to the Council. She said school did too. She said there were problems getting information to the Council officer.
50. In June Z received 3 hours per day online tuition Monday to Thursday.
51. In July, with the help of a representative, Ms X complained to the Council about the failure to deliver education to Z and the failure to properly handle the EHC Plan.
52. The Council made its first complaint response. The Council said it had been in contact with the school several times and was waiting for the information to be sent by school, to it.
53. In July and August, attempts to send information to the Council continued. The Council said it did not receive the updates Ms X, and the school, sent to it.
54. In August the Council sent a draft EHC Plan to Ms X for her comments.
55. The Council consulted with two colleges.
56. In September online tuition for Z stopped.
57. The Council continued to consult with educational providers (college settings) about a placement for Z. The Council said it did this because Ms X was adamant Z could not return to the school setting.
58. In November the Council organised for a tutor to attend Z’s home for three hours a day.
59. The communication problems carried on through November and December. The Council said it had sent consultations out. When Ms X contacted providers, the consultations had not been received, or the providers had difficulty contacting the Council.
60. In early 2024, a placement at a college setting was identified for Z.
61. At the end of January, the school completed the transfer process to the college setting.
62. At the start of February 2024, the college setting confirmed it would enrol Z as soon as possible.
63. A few days later the final EHC Plan was issued to Ms X, naming the college setting as the placement.

My findings

64. The academic year September 2023 – July 2024 was an important academic year for Z. It was Year 11, the final year of high school.
65. Delay was a key factor in my findings. There were several areas of significant delay identified. They will be further explained, in detail, below.

Z’s Education Health and Care Plan

Annual Review Meeting

66. The EHC Plan annual review meeting that took place in January 2023 was rescheduled from December 2022. This was the annual review for 2022. While I have not investigated matters from 2022, it is of note that this meeting should have taken place during that year.
67. The meeting record from January 2023 I have reviewed as part of this investigation is of poor quality. It is incomplete. As part of this investigation, the Council said this was down to the school. Ms X said she discussed the issues Z had at this meeting. There is no record of presenting issues, review of intervention or agreed actions. It is barely populated. The meeting record hindered my analysis of the annual review process.
68. It is clear, however, that at the end of January the Council were informed that Z had stopped going to school following an incident earlier in the month.
69. The Council said an emergency annual review was held in May 2023, in response to Ms X’s concerns. I have seen no documentation that evidences this. The only meeting minutes I have reviewed are from January.
70. The Council said draft changes were made directly to the EHC Plan, following the meeting in May. I have no way of analysing this as the plan is now in its final form. The lack of meeting minutes for the May 2023 review meeting is fault by the Council. It has hindered my investigation and will have added to Ms X’s frustration and concern about the Councils approach.

Delay issuing Final Plan

71. The annual review meeting took place in January 2023. The Council did not issue the final plan until February 2024.
72. The Councils response to my enquiries was confusing and contradictory.
73. In its first response it said a final plan was issued in August 2023. Having seen no evidence of this I made further enquiries.
74. When questioned further, in its second response it told me it did not issue a final plan until February 2024. It recognised the delay. It said ‘extensive work’ took place with the family regarding the content of the EHC Plan, and this contributed to the delay.
75. I have seen evidence of the Council contacting education providers. I have seen evidence of contact between Ms X and the Council. The contact was not extensive, nor what we would consider to be significant.
76. There is no evidence of extensive work or intervention being carried out. I have reviewed requests from Ms X for updates, and I have noted the amount of effort Ms X put into trying to connect the Council with educational providers, herself including completing application forms, to combat the delay.
77. The annual review in the scope of this investigation took place in January 2023. There is no evidence of a letter being sent to Ms X to tell her of the Councils intention following the review. This should have happened within four weeks of the meeting. Failure to issue a decision letter was fault by the Council. This fault contributed to the confusion and distress experienced by Ms X and Z, and resulted in a delayed appeal right for Ms X.
78. It has been assumed, through reviewing available evidence, that the Council sent the EHC Plan to Ms X in draft form in August 2023. I have seen no evidence of the Council sending Ms X an accompanying notice, with the draft paperwork. Again, this was fault by the Council. This impacted Ms X’s ability to understand the process in full and consider the proposed amendments properly.
79. As it is now understood that the Council intended to make changes to the plan, the final amended plan should have been issued within 12 weeks of the date of the review meeting. This would have been end of March 2023. The final plan was issued in February 2024, a total of 11 months delay. Failure to issue the plan according to the expected timeframes was fault by the Council. Additional provision agreed in the updated plan would have been in place to support Z, but for the delay.
80. This fault led to distress and uncertainty for Ms X and for Z. It likely had an impact on the ability to source an educational placement for Z. Providers use plans to determine whether they can appropriately support children in their settings.

Request for Reassessment

81. Ms X told us she first asked for a reassessment in February 2023.
82. The assessments that informed the EHC Plan were several years out of date, some dating back to 2010. It is understandable that Ms X thought a reassessment might benefit Z and inform the EHC Plan more accurately.
83. The Councils response to my enquiries about Ms X’s request for reassessment of the plan was confusing. The Council referred to two dates, one in March 2023 and one in June 2023.
84. At one point in response to my enquiries the Council said it was not aware of the request until June 2023. However, in email correspondence reviewed as part of this investigation I can see the Council advised Ms X of the formal process to undertake should she want a reassessment, in April 2023. It told her it was a ‘not a quick process’ and said:
• She would need to put her request in writing giving reasons for the reassessment, and
• A panel would then decide whether a reassessment could take place.
85. There was no need for the Council to reiterate this to Ms X. Ms X had already put her reasons in writing. She had done so in February 2023.
86. However, Ms X subsequently wrote again to the Council in April to ask for a reassessment. It acknowledged her request two days later. It then did not follow this up.
87. The Council said the request was resolved through working with Ms X to amend the EHC Plan.
88. Ms X said this was not the case. She said the Council did not respond formally to her request. At no point did she withdraw the request for a reassessment. There is no evidence to support the Councils claim that Ms X withdrew her request for a reassessment.
89. Failure to respond properly to Ms X’s request for a reassessment was fault by the Council. This fault resulted in Ms X experiencing more uncertainty and frustration. It meant Ms X did not get the chance to have a panel formally consider her request. It also resulted in loss of an appeal right. Refusal to reassess a plan carries a right to appeal.

Alternative provision

90. The Council were made aware of Z not attending school in January 2023. This is evidenced in the meeting minutes of the annual review that took place in January 2023, where it was noted that a Council officer was in attendance. A proper record of the conversations that took place is absent; however, the Council were present.
91. The Council said in response to my enquiries, that there was a place at school for Z, that it deemed suitable, and he remained on roll at school until the end of October 2023. It said Ms X was adamant that Z would not return and it implemented home tuition from November - February.
92. The Council told us that school implemented Z’s online tuition in June 2023. The provision was 3 hours a day, Monday to Thursday and ended in September.
93. Ms X was clear Z could not return to school many months before home tuition was implemented. She explained the impact on Z’s mental health and asked for help repeatedly from February 2023.
94. The amount of education received by Z was inadequate. It was far less then Z would have received had he been in school. We would normally expect children out of education to receive around 22 - 25 hours provision per week. Unless this is not in the best interest of a child, and considering individual needs, and the method of delivery.
95. The Council did not organise alternative provision because it continued to believe school was available, appropriate, and accessible to Z.

By offering home tuition, as it did so from November 2023, the Council was accepting the placement was unsuitable. At this point it should have considered what provision Z was receiving, the frequency and the amount and method of delivery.

96. In total Z was without full time educational provision between January 2023 – February 2024 when he started at a new placement. Failure to ensure Z was receiving adequate education, from November 2023, was fault by the Council. This fault likely had a significant impact on Z, at an important transitional year in his education.

Section F of Z’s Plan

97. Section F of Z’s plan relates directly to strategies (to be used by educators) to support Z’s learning in school. There is no reference to additional services in section F, e.g. occupational therapy, for example. The provision is a tailored approach to support Z’s special educational needs as he learns.
98. The Council had a duty to ensure that Section F of Z’s plan was delivered throughout the time Z was out of education. Section 42 of the Children and Families Act, 2014, places an absolute, non-delegable duty on a council to secure the provision in Section F of a plan.
99. Through reviewing evidence, as part of this investigation, I have not found the Council took steps to ensure delivery of Section F in Z’s plan.
100. There is no evidence available to suggest the online tutor or the tutor who attended Z’s home delivered specialist educational provision, that ensured all aspects of Section F of the plan were delivered.
101. The Council failed to deliver the contents of section F of Z’s plan from January 2023 – February 2024. This was fault by the Council. This fault only exasperated the impact of the lack of education throughout this time. It would have likely had an impact on the transition Z underwent from school to college in February 2024.

Communication

102. There was clearly an issue with the communication system used by the Council. More than one provider said it had not received documents the Council said it had sent. Ms X also had issues receiving information. The Council had ample opportunity to address this. Through reviewing documents on file, the communication issues continued for several months in 2023. Failure to address the communication issues that were repeatedly reported to it throughout 2023, was fault by the Council. This fault caused undue delay, and frustration for Ms Z and certainly had an impact on the speed at which the Council communicated with providers about potential placements.
103. While the Council maintained some contact with Ms X, it has been observed through reviewing evidence on file, that Ms X made several efforts to chase the Council for responses, and efforts to try to minimize delay that was out of her control. The Councils interaction with her did not result in her feeling supported or satisfied.
104. It is accepted and widely understood that demand for special educational provision, and input from Councils largely outweigh the resource available. I will therefore not make a finding of fault about the Councils communication with Ms X throughout the period complained of. The Council said staff retention was a key issue for it and had an impact on its ability to communicate properly with Ms X.
105. In general, I have seen evidence of interaction and attempts to update Ms X, on part of the Council. However, as previously noted, action on the part of the Council was not extensive.
106. The failure to communicate properly about Z’s EHC Plan properly, however, was fault. This fault has already been recognised as part of my findings and will be remedied appropriately.

Wider Impact

107. The Ombudsman made recommendations following finding fault in several other investigations, since March 2024, about the Councils role in delay regarding EHC Plans.
108. In two decisions made this year, part of the issue was about delay in educational providers responding to the Council, and the Council making sure it had a process in place to address this.
109. The Council needs time to implement changes to procedure about its response to delay caused by education providers not responding quickly enough.
110. As part of this investigation, the Council told the Ombudsman about steps it is taking to address the issues around delay. This includes training and developing quality assurance work. This is welcomed. However, patterns identified in the delay in the annual review process remain concerning.
111. Rather than issuing further service improvement recommendations as part of this investigation I have made formal enquiries of the Council under Section 26D of the Local Government Act 1974. I have requested data from the Council about the current delay for children awaiting EHC Plan annual reviews, and its intentions to rectify that delay. This is so I can decide whether there is any indication of potential widespread injustice to members of the public served by this Council.

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Action

112. Within four weeks of receiving a final decision, to remedy the injustice by Ms X and Z, the Council has agreed to:
• Apologise to Ms X in line with our guidance on Making an Effective Apology. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Make a symbolic payment to Ms X of £1,100. The payment recognises the loss of educational provision from November 2023 (when home tuition started) – February 2024 and the associated impact of this on Z at an important transitional year in his life,
• Make a symbolic payment to Ms X of £300 to recognise the undue frustration, confusion and distress caused by the Councils poor handling of Z’s EHC Plan and associated poor communication.
113. The Council should provide us with evidence it has complied with the above actions.

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Decision

114. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman