Summary: Ms X complained the Council failed to provide the Speech and Language Therapy and Occupational Therapy from her child’s Education, Health and Care Plan since September 2023. Ms X also complained the Council failed to provide suitable education for her child while absent from school and declined to complete an early annual review. We found fault with the Council delaying providing some Education, Health and Care Plan provision from June 2024 until November 2024 and Alternative Provision of education in September 2024. The Council agreed to apologise to Ms X and pay her a total of £550 to recognise the distress, frustration and lost opportunity caused. The Council also agreed to put specific missing Education, Health and Care Plans provision in place.

The complaint

1. Ms X complained the Council failed to provide the Speech and Language Therapy (SALT) and Occupational Therapy (OT) provisions from her child’s Education, Health and Care Plan since 22 September 2023.
2. Ms X says her child was medically too unwell to attend school in March 2024 because of the lack of support from the Council. Ms X says a Clinical Psychologist signed her child off as too unwell to attend school. Ms X complained the Council failed to provide education for her child until October 2024.
3. Ms X also complained the Council refused an early annual review of her child’s Education, Health and Care Plan, including consultations about other settings.

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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. 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)
7. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
8. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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)
10. 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

11. I have not investigated Ms X’s complaint about the Education, Health and Care Plan provision put in place from 22 September 2023 to 11 June 2024. This is because Ms X used her appeal rights to the SEND Tribunal over Section F of her child’s Education, Health and Care Plan.
12. A council has a general duty to provide a child with the Section F provision detailed in their Education, Health and Care Plan even when a person has appealed to the tribunal. An appeal to the SEND Tribunal does not automatically prevent the Ombudsman from investigating whether the Council carried out this duty. However, the Ombudsman cannot investigate something when this would overlap with the role of the tribunal; this depends on the nature and wording of an appeal 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)
13. Ms X appealed the quantity, mode of delivery and the people who would deliver, notably their qualifications, her child’s SALT and OT Section F provision to the SEND Tribunal. The result of Ms X’s appeal was a change to all these factors in a revised EHC Plan issued by Consent Order on 11 June 2024.
14. Because of the wording of Ms X’s appeal to the SEND Tribunal, and the nature of this appeal, there would be a clear overlap between an Ombudsman investigation and what was considered through the tribunal process resulting in the Consent Order. This presents a jurisdictional bar to the Ombudsman investigating this part of Ms X’s complaint.
15. I have ended my investigation from 14 November 2024. This is because this is the date the Council issued its final complaint response. The Ombudsman must give a council opportunity to address a complaint before we investigate. Any matters since 14 November 2024 would be the subject of a new complaint.
16. I have investigated the other matters Ms X has brought to our attention.

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How I considered this complaint

17. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
18. 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

Rules and Regulations

EHC Plans

19. 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.
20. 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.
21. 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.
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. A person can request an emergency or interim review of their child’s EHC Plan at any time. A council does not have to complete a review on request but it must show it has considered a request. A council should explain its decision about whether it will complete a review of a child’s EHC Plan to the person making the request.
24. 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

25. 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.
26. 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)
27. 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))
28. 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)
29. 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
30. 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;
• consider (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.

31. 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.
32. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when a child is absent for non-medical reasons. Government guidance recommends for medical issues that a council considers its Section 19 duty to provide education where it is clear the absence is for more than 15 school days. When a council arranges alternative education on medical grounds, that education should begin as soon as possible, and at the latest by the sixth day of a child’s absence.
33. 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

34. In this decision statement, I have not detailed every event or every piece of information due to the volume of information available. However, I have considered all pieces of information. The below chronology includes key events in this case and does not provide details of everything that happened.

Background

35. On 22 September 2023, the Council issued a second amended Final EHC Plan for Ms X’s child, who I shall refer to as Y, naming her school placement in Section I.
36. Y started to attend this school on 9 October 2023 under a reduced timetable.
37. The Ombudsman previously investigated a complaint by Ms X about the delays in production of Y’s amended EHC Plan and provision of suitable education up to October 2023.

Period of investigation

38. On 8 February 2024, an annual review meeting was held for Y’s EHC Plan. At the annual review meeting, Y’s school noted that Y had made positive progress reintegrating into education and that Y was currently on a reduced timetable. Ms X confirmed Y is tolerating being back at school. Ms X said she would like Y to work up to increasing time at school balanced with avoiding a risk of burnout. The recommendation was to maintain Y’s EHC Plan.
39. Ms X arranged an assessment of Y by a Clinical Psychologist who provided a report about Y on 2 April 2024. Within this report, the Clinical Psychologist said:
• They believed that Y “is too unwell to attend school” including negative thoughts of a suicidal nature.
• They hoped that with a period of recovery and support, possibly through medication, that Y would be able to begin to attend school attend and be able to increase her attendance over time.
• Y has expressed a desire to return to school.
40. On 9 May 2024, Ms X contacted the Council to request Alternative Provision of Education for Y. Ms X said Y had only been attending school twice a week and the work sent home by Y’s school was not suitable. Ms X said Y had not been accessing full-time education for 15 days. Ms X provided the Clinical Psychologists letter to the Council.
41. Ms X and Y’s school liaised about what support could be offered for Y to transition to school in May 2024.
42. On 14 May 2024, the Council contacted Y’s school for input about Ms X’s application for Alternative Provision of education. Y’s school told the Council Y was currently attending two mornings sessions each week in which Y accessed a lesson, that Ms X originally attended with Y but now Y was attending on her own. Y’s school said it had started to offer afternoon sessions for Y which Y had attended once. Y’s school said it considered Y would benefit from increasing her time in school and it was liaising with Ms X about how to make this happen.
43. On 20 May 2024, the Council decided it would not provide Alternative Provision of education for Y. The Council told Ms X it had considered its Section 19 duty and been in contact with Y’s school. Since Y had started to attend school again and Y’s school was putting in place support to help increase Y’s attendance, it did not consider formal Alternative Provision of education was suitable. The Council said it would review this in three months.
44. The Tribunal issued a Consent Order on 4 June 2024 instructing the Council to issue an amended EHC Plan for Y. The Council issued the amended Final EHC Plan on 11 June 2024. Within this Final EHC Plan the Council detailed the following Section F provision for SALT and OT:
• Speech and Language Therapy session or 30 minutes each week delivered by a staff member experienced in working with children like Y.
• 3 hours a year allocated for a SALT review to update Y’s programme termly.
• A one-off block of five 45-minute SALT sessions to support fluency through fluency shaping techniques.
• Structured group work with peers, such as through talkabout, once a week for up to 40 minutes over twelve weeks.
• Social skills group therapy delivered by a trained member of staff experienced in working with children like Y. This should include six 30-minute sessions in the first term and then two 30 minutes sessions in the second and third terms.
• Group therapy sessions planned jointly between school and SALT.
• Two 25-minute visits at school and four 45-minute visits at home by an Occupational Therapist. Following these sessions for Y to engage in three times a week 15-minute sessions at school or at home.
• An Occupational Therapist to develop a fine motor skills programme to be delivered 15 minutes per day. Occupational Therapist to review and update the programme once every two terms.
• An Occupational Therapist to develop an individualised regulation profile to aid Y to be reviewed and updated once every two terms.
• Four 45-minute sessions of an Interoception Programme delivered at home.
45. Y stopped attending school on 13 June 2024 until the end of the academic year.
46. On 8 July 2024, Ms X complained to the Council about the suitability of Y’s school and the Council’s decision not to arrange Alternative Provision of education for Y. Ms X asked the Council to consult other schools for Y.
47. An attendance support meeting was held between Y’s school and the Council on 9 July 2024. Y’s school confirmed it was continuing with Y’s reintegration plan and that Y wants to return to school. A part-time timetable for Y was agreed until the end of term.
48. On 16 July 2024, Ms X sent a pre-action protocol letter to the Council. Ms X said:
• The Council was not providing full-time education for Y.
• The education on offer was not suitable for Y and was inadequate for Y’s needs.
• The Council was failing to secure provision detailed in Y’s EHC Plan such as SALT and OT since Y stopped attending school as normal.
• Y is not attending school for enough time for all the school-based provision in the EHC Plan to be delivered.
49. On 19 July 2024, the Council responded to Ms X’s contact of 8 July 2024. The Council said it would not consult a different educational placement for Y. The Council said this was because it would need to arrange an annual review and it had only just finalised Y’s EHC Plan and held an annual review on 8 February 2024. The Council said Ms X did not make a request to change Y’s educational placement at either the annual review or as part of the tribunal appeal process.
50. The Council provided a response to Ms X’s pre-action protocol on 2 August 2024. The Council said:
• It issued an EHC Plan for Y on 4 June 2024 following the tribunal Consent Order and the educational placement was not in dispute.
• Y’s school had carried out the Clinical Psychologist recommendations from March 2024.
• It had considered Ms X’s request for Alternative Provision of education in May 2024 and declined this with a plan to review in three months.
• It had kept Y’s education under review and decided to proceed with the current reduced timetable plan.
• It understood SALT and OT provision had now been arranged for September.
51. Ms X responded to the Council on 8 August 2024 and outlined the need for better communication about the Occupational Therapy support and what tuition she wanted for Y. Ms X reiterated the Section F EHC Plan provision that needed to be provided for Y.
52. On 16 August 2024, the Council completed the three-month review of Y’s education. The Council agreed to put in place interim tuition for Y from September 2024 and contact a provider the same day.
53. The Council arranged a meeting with Ms X for 12 September 2024 to discuss Y’s access to education. The Council continued to liaise with Ms X about this access to education and EHC Plan provision.
54. On 16 September 2024, an interim tuition provider started to provide Alternative Provision of education for Y.
55. The Council held a meeting with Ms X and other professionals on 12 October 2024 to discuss Y’s access to education. It was agreed that Y wanted to reintegrate into the current school placement with support from the Alternative Provision of education.
56. The Council held a further meeting with Ms X, the school and Clinical Psychologist on 24 October 2024. It was agreed that Y's current provision would focus on improving attendance at school and dealing with school based trauma rather than formal academic learning.
57. On 29 October 2024, the Council provided a final response to the pre-action protocol. The Council said:
• It accepted Y was not receiving full-time education or their full Section F EHC plan provision.
• Ms X and Y wanted Y to reintegrate into Y’s school.
• Y received the five 45 minute SALT sessions as detailed in their EHC plan.
• It had arranged a package of education for Y. This included 1:1 tuition, online tutoring, time at Y’s school (including SALT provision), 3 hours of Intensive Personalised Support at an Alternative Provision provider per week, a plan for Y to access online groups after half term and support plans for Y at school.
• A recent meeting with the Clinical Psychologist resulted in an agreement that Y’s education should focus on dealing with school-based trauma rather than formal education.
• It would complete a review of Y’s educational provision in January 2025.
• It is in Y’s best interests to receive part-time education with the reintegration into the school setting necessarily being slow.
• Because it considered it was in Y’s best interests not to receive a full-time education this also applied to their EHC plan provision. It was not practical to deliver the full provision on a part-time timetable.
• It will review Y’s EHC Plan provision at the annual review once Y has had more opportunity to reintegrate to school.
58. The Council issued a formal complaint response on 14 November 2024. The Council said it considered Y’s educational placement was suitable for Y’s needs. The Council also did not uphold Ms X’s complaint about refusing to provide Alternative Provision of education because Y’s school was supporting Y to attend and it has since introduced Alternative Provision of education.

Analysis

Alternative Provision of education

59. It is not the role of the Ombudsman to investigate the actions of a school. I could not find the Council at fault for failing to provide education for Y before it was made aware that Y was not attending school.
60. When Y started at the new school in October 2023, she started on a reduced timetable. This was an agreed plan to integrate Y into the new school setting. The feedback to the Council from the annual review meeting in February 2024 was that Y’s reduce timetable was showing positive progress. It also confirmed the agreed plan between Ms X and Y’s school was to increase Y’s attendance at school. At this stage, the Council would have no reason to question Y’s success with integrating into the school setting.
61. From 2 March 2024 to 22 April 2024, Y only managed to attend half a day at school. However. neither Ms X nor Y’s school told the Council about any breakdown in the reintegration plan or issues with Y's attendance until Ms X’s contact on 9 May 2024. I cannot find the Council at fault for any inaction when it was not told about the issues with attendance Y was experiencing.
62. When Ms X contacted the Council on 9 May 2024, Y’s school had agreed a new reintegration plan with Ms X. Y had started this reintegration plan from 22 April 2024 and was starting to access more time at school each week.
63. The Council had a duty to consider Y’s access to education when Ms X made it aware of Y’s difficulties in accessing education at their school. The Council’s Section 19 duty does not always mean it must provide education for a child not attending school. The Section 19 duty means the Council should consider a child’s individual circumstances and decide whether suitable education is available to this child or whether it needs to provide suitable education itself.
64. The Council has shown that it considered Y’s individual circumstances. The Council contacted Y’s school, discovered that a plan was underway to reintegrate Y into school and decided that Y could access a suitable education at the school. The Council made this decision considering the medical evidence provided by the Clinical Psychologist. Notably, the Clinical Psychologist said following an assessment of Y in March 2024 that Y was too unwell to attend school but with suitable support Y should be able to attend school. By May 2024, Y was already attending school under a reintegration plan which was in line with the Clinical Psychologist’s recommendations.
65. The Council followed the relevant guidance and legislation in deciding not to provide Alternative Provision of education for Y in May 2024. The Council made a merits decision it was entitled to make. I cannot find fault with the Council.
66. The Council committed to reviewing its decision in three months, which follows the Council’s own policy on keeping education under review following consideration of a Section 19 duty. The Council met this timescale by completing a formal review on 16 August 2024.
67. When the Council completed the formal review on 16 August 2024, it became clear the reintegration plan had broken down because Y had not attended school since 13 June 2024. The Council changed its decision on this date and decided to provide Alternative Provision of education for Y.
68. When the Council decided to provide Alternative Provision of education for Y it should have started this from the latest of the sixth day of absence. Given that Y had already been absent since 13 June 2024 and the Council had two weeks before the Autumn term started, the Council should have arranged Alternative Provision of education from the start of term on 4 September 2024. The Council delayed in arranging this Alternative Provision of education causing Y to miss nearly two weeks of education; this delay was fault.
69. Since 16 September 2024, the Council has provided a bespoke educational package for Y including education through the school, through 1:1 tuition and Intensive Personalised Support provision. The Council has also kept Y’s access to education under review and increased this provision in November 2024 to include 2 hours of group sessions each week. At the end point of my investigation, the Council had committed to reviewing Y’s educational package again in December 2024. I do not find fault with the Council’s provision of education for Y since 16 September 2024.

EHC Plan Provision from 11 June 2024 to 14 November 2024

70. Once a council produces a Final EHC Plan for a child it has a duty to provide the full provision detailed in that child’s EHC Plan. When the Council produced Y’s EHC Plan on 11 June 2024, it did so in the knowledge that Y was only accessing school on a part-time basis. This meant, that any provision detailed in Y’s EHC Plan on 11 June 2024 should have been suitable for Y’s current needs and should have been delivered in full from this point.
71. The Council failed to provide any of the SALT or OT provision from Section F of Y’s EHC Plan from 13 June 2024, when Y stopped attending school, to the end of the academic year; this was fault.
72. In September 2024, the Council provided the one-off block of 45-minute SALT sessions and began provision of the OT interoception programme. The OT also completed the home visits in September 2024 with school visits being completed after 24 November 2024 but before the end of the term. The Council also arranged the Intensive Personalised Support provider for three hours each week which fulfilled the Section F provision for social skills and group work with peers.
73. Y’s Speech and Language Therapist also completed a review of Y’s SALT provision on 11 November 2024 meeting the termly requirement for this. The Speech and Language Therapist also planned reviews in January 2025 and April 2025 in which it would complete joint planning with Y’s school for therapy sessions for Y.
74. The Council decided in September 2024 to delay provision of the school SALT sessions until Y had completed the block of sessions with the SALT to prevent burnout for Y.
75. The Council has advised it decided it did not need to provide the full EHC Plan provision for Y because she only attended school on a part-time basis. The Council rationalised this decision by stating Y might not be able to cope with too much demand and this was in her best interests. The Council is entitled to make this decision and, in the circumstances of Y’s case, this is a decision that is suitable. However, the Council only made this decision on 24 October 2024. Any failure to deliver the full provision from 11 June 2024 to 24 October 2024 would still be fault. This is because the Council had yet to make a formal decision that it should not provide the full provision for Y. The delay in making this decision caused a lost opportunity for Y to access more suitable provision to meet her needs.
76. While the Council has provided most of the SALT and OT provision detailed in Section F, there was provision missed. The Occupational Therapist did not develop a fine motor skills programme for Y or an individualised regulation profile for Y. These provisions should have been put in place by 14 November 2024. Failure to ensure these provisions were in place was fault.
77. While the Council says it is providing part-time provision, the Council must ensure it is providing well rounded provision. The Council should not omit entirely certain provisions, such as fine motor skills, even if it decides to provide a lower quantity in the interim. It is not for the Council to unanimously decide to omit delivery of provisions from an EHC Plan and this should only be changed through the annual review process.

Early annual review of Y’s EHC Plan

78. Ms X sought a change of placement for Y on 8 July 2024. The Council declined this change of placement on 19 July 2024 because an annual review was only completed five months ago and a new final EHC Plan produced one month ago. During the process for both the annual review and final EHC Plan through the tribunal Consent Order, Ms X did not seek a new school placement.
79. While a council must consider a person’s request for an early annual review, which would prompt a review of a child’s educational placement, it does not have to agree to this. The Council decided not to proceed with an annual review and presented its reasons for this, I cannot find fault with the Council for this.
80. It is also of note that Ms X had an appeal right to the educational placement named in Section I of the EHC Plan produced on 11 June 2024. If Ms X was unhappy with the school placement, the correct route would have been to appeal this to the tribunal. The Ombudsman cannot require a change of placement or required a change to the content of a child’s EHC Plan.

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Action

81. Within one month of the Ombudsman’s final decision the Council should:
• Provide Ms X with an apology for the delays from 4 September 2024 to 16 September 2024 in putting in place Alternative Provision of education for Y and make a payment of £150 for this lost provision and the impact this caused on both Ms X and Y.
• Provide Ms X with an apology for the delays, and failure, to secure Y’s full Speech and Language Therapist and Occupational Therapist Section F EHC Plan provision from 11 June 2024 to 14 November 2024 and make a payment of £400 for this lost or delayed provision and the impact this caused on both Ms X and Y.
• Ensure that the Occupational Therapist provision in the EHC plan is delivered in full.
82. The Council should provide us with evidence it has complied with the above actions.

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Decision

83. There was fault leading to injustice. As the Council has agreed to my recommendations, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman