Summary: Mrs X complained that her child missed educational provision. There was a delay in holding an annual review and in sending the final Education, Health and Care Plan after that review. This delayed the Council being aware that a child was out of school. The Council was at fault as it did not check that provision was being put in place by a school after it had been told that a child was not attending school. A payment remedies the uncertainty caused to Mrs X, who will never know if other provision could have been put in place earlier if the monitoring had occurred.

The complaint

1. The complainant, who I shall call Mrs X, complains the Council did not provide suitable alternative educational provision when a child, Y, was no longer able to attend school. Mrs X says that Y has missed educational provision.
2. Mrs X also says there were delays in sending the final Education, Health and Care (EHC) Plan after an annual review.

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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. 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)
5. 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

6. I have not investigated the complaint about the lack of educational provision from 20 March 2024 onwards. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
7. There is a right of appeal to the Tribunal against a council’s 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;
8. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
9. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
10. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
11. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
12. Mrs X had the right to appeal against the Council’s decision that the setting named in the EHC Plan to provide the provision in Section F of the EHC Plan was suitable and did attend mediation with the Council. The Council named the placement and confirmed in June 24 it still felt the placement could meet needs if Y was attending. If Mrs X wished to dispute the placement she could have appealed to the SEND tribunal. I consider that the complaint about the provision of Section F in the EHC Plan is inextricably linked to the disagreement over the setting in the EHC Plan and so do not intend to exercise discretion to investigate matters after 20 March 2024.

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How I considered this complaint

13. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
14. Mrs 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

15. Y had an EHC Plan dated 13 February 2023. This named the specialist school he had been attending since 2021. There was an annual review of the EHC Plan on 14 September 2022.
16. Y had a period of unauthorised absence from school at the end of June 2023, before the summer holidays.
17. Y attended school for 12 days in September 2023 and the Council has said that Y went on holiday for 4 weeks in October, before the half term holiday.
18. The Council has said it first became aware of Y’s attendance difficulties at the EHC Plan annual review on 28 November 2023. The final EHC Plan after the annual review was sent on 20 March 2024. Mrs X did not appeal the provision or the setting in the EHC Plan, but she did attend mediation.
19. From 20 November 2023 until 28 March 2024 Y’s absence from school was authorised. The Council said ‘the school attempted to work to encourage Y into school. The school provided an alternative package of learning, including work sent home and weekly video calls’.
20. The Council held a meeting to discuss Mrs X’s request for alternative educational provision under Section 19 on 11 January 2024. And, meetings on 18 January and 30 March to discuss her request for a personal budget.
21. From 15 April 2024 until 19 July 2024 Y’s absence from school was unauthorised.
22. Mrs X decided to electively home educate Y and the EHC Plan was amended to reflect this on 29 August.
23. The Council has said the annual review for the EHC Plan is overdue. Mrs X has asked for it to be postponed until July 2025.

2023 Annual review

24. A child or young person with special educational needs may have an 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 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) 
26. 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.
27. The annual review of 28 November 2023 was not held within 12 months of the last review on 14 September 2022. There was a delay of 2 months. I have not seen evidence of a letter being sent to Mrs X within 4 weeks of the review saying whether the Council intended to amend the EHC Plan. The Council sent the final plan to Mrs X 16 weeks after the annual review meeting.
28. There was a combined delay of about 3 months in holding the annual review and sending the final EHC Plan to Mrs X afterwards. This was fault and if the annual review had been held earlier, the Council would have been aware sooner that Y was not attending school. So, there is injustice to Mrs X, as there is some uncertainty over whether monitoring or tuition could have been put in place earlier if the annual review had been held in September.
29. Mrs X explained that after the November 2023 annual review she made a request for a personal budget and Education Otherwise Than At School (EOTAS). She complains the Council did not tell her promptly of the outcome. The request for EOTAS was made as part of the annual review process and Mrs X was told of the outcome when the EHC Plan was finalised. Mrs X then had the right to appeal to the SEND tribunal against the Council’s decision to continue to name the school.
30. Mrs X also made a request for a personal budget. The Council has said that this was considered on 18 January 2024 but the report of the meeting does not specifically say whether the personal budget was agreed or not. I cannot find a clear written response to Mrs X telling her that the personal budget was not agreed, other than the response to the EOTAS proposal. This was fault which is linked to the fault in the Council’s failure to put in place the provision in Section F and so I do not intend to consider a separate remedy for this point.
31. Mrs X complains that she was put to time and trouble getting quotes for a personal budget proposal for Section J of the EHC Plan, which the Council requested on 5 February and she sent on 20 February 2024. I can see that there was confusion, as the request Mrs X sent was for an EOTAS package instead of the named school on the EHC Plan. A parent can also request a personal budget in addition to the placement at the named school. The Council did not make clear to Mrs X exactly what it had considered and refused in relation to the personal budget proposal. While this was fault, the injustice caused to Mrs X is less clear. Mrs X had the right of appeal against the Council’s decision not to agree to EOTAS to the SEND tribunal and as she did not appeal, I do not consider that the 4 week delay in sending the final plan significantly affected the outcome.

Alternative provision and provision of Section F of the EHC Plan

32. The Council was made aware that Y was not attending school on 28 November 2023 at the annual review. Y’s absence from school from then until 20 March 2024 was authorised using the code for ‘other’ authorised circumstances.
33. The Council said that Mrs X’s request for alternative provision was considered on 11 January 2024. This was 4 weeks after her request, not counting the school holidays. The Council denied the request. It said ‘it is our expectation that school use their tool kit and continue to draw on advice and guidance from SEND services. Therefore, we decline the request as school is able to meet Y’s Special Educational Needs, if he was to attend’.
34. In response to my enquiries, the Council said ‘at the time the Council’s Section 19 policy was inconsistent. There should have been a clear outcome and a three month check would have been scheduled. This would have ensured ongoing, robust monitoring of Y’s attendance and a more responsive approach to the lack of progress’.
35. The Council has said that it has now updated its Section 19 Policy to ensure that three month checks are put in place.
36. The Council has said ‘if the 3 month check had been put in place in April 2024, the Council would have reviewed how effective the school support plan had been. This would have been an opportunity to see if further support from Council services would enable Y to have a suitable education a school or whether the Council needed to make arrangements’.
37. The Council has said ‘it appreciates that Mrs X’s complaints of February and March 2024 were a missed opportunity to consider whether sufficient oversight was in place’.
38. Mrs X has explained that Y received no education from 28 November 2023 when the Council were told that Y was not attending school. This was an authorised absence, there had been an EHC Plan annual review and Mrs X made an official complaint. While the Council did consider the request for alternative education in January 2024, it did not investigate or monitor what the ‘bespoke provision’ the school mentioned was or whether it was put in place.
39. In situations where a child is medically or otherwise unable to attend the school named on the EHC plan, the Council should consider how to make the provision specified in Section F away from the school. This is due to both the Council’s duty under section 19 of the Education Act 1996 as well as section 42 of the Children and Families Act 2014.
40. Section 42 of the CFA 2014 places an absolute, non-delegable duty on a council to secure the special educational provision set out in section F of an EHCP (R (N) v North Tyneside Borough Council [2010] EWCA Civ 135). The “absolute, non-delegable” nature of the duty means that a council has no defence even if it has taken reasonable steps to secure provision (e.g. by putting stop-gap measures in place falling short of the provision specified in Section F) or the failure to make provision is the fault of a third party.
41. The courts have found that a failure to make the provision specified in an EHCP may simultaneously involve breach of the section 19 duty as well as section 42 of the CFA 2014. In R (LB) v Surrey County Council [2022] EWHC 772 (Admin), the claimant had an EHCP specifying a residential placement but this placement broke down. Attempts were made to put in place alternative provision but there were repeated delays of over a month before the council began searching for alternative arrangements after it became apparent that a particular approach would be unsuccessful. The council was therefore held to be in breach of section 19, as it had “failed to make available for [the claimant] an efficient educational facility that is suitable for her age, ability and aptitude and her special educational needs, and was reasonably practicable for her” (paras 44; 81-85). The council also conceded that it had breached section 42, given that the provision specified in the claimant’s EHCP was not secured during the relevant period.
42. The Ombudsman’s role is to investigate maladministration and service failure rather than unlawfulness. A breach of section 42 does not necessarily constitute maladministration. However, given the nature of the section 42 duty, the Ombudsman is entitled to hold councils to a high standard in assessing the steps they have taken to secure the provision specified in Section F.
43. I can see no evidence that the Council specifically considered whether the school was putting in place the provision in Section F of the EHC Plan from November 2023 onwards, when it was aware Y was not attending school.
44. The information I have shows the Council failed to monitor the provision in Section F of the EHC Plan for a term, from January 2024 until March 2024. I have not proposed a remedy for September to December 2023. This is because even if the Council had became aware Y was not in school from the end of September 2023 I do not consider a financial remedy is appropriate for uncertainty for the period from September to December. This is because Y was in school for some of September, then the family went on holiday. This only leaves a period of a few weeks before the annual review was held and it is unlikely the annual review could have been held much earlier.
45. To remedy the injustice to Mrs X and Y from the uncertainty on whether tuition would have been provided if the Council had monitored the provision the school said it would provide for one term I recommend a payment of £900. This payment is at the lower end of our remedy range as it is not certain that Y would have engaged with alternative education, such as tuition. I have not made a service improvement remedy as the Council has already updated its policy to ensure checks are put in place.

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Action

46. Within one month of the date of the decision on this complaint the Council should:
• Pay Mrs X £900.
47. The Council should provide us with evidence it has complied with the above actions.

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Decision

48. I have completed my investigation and I find fault causing injustice. This complaint is upheld. 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