Summary: There was significant delay in updating an Education, Health and Care Plan which meant the family did not have an appeal right at a time when they had lost confidence in the named school. There was a failure to provide alternative education once the Council agreed the placement was untenable until a new school place was found. The Council has agreed to apologise and make symbolic payments to acknowledge the distress caused.

The complaint

1. Ms M complained to the Council in Spring 2024. She said her son, B, who has an Education, Health and Care (EHC) Plan, had missed much of the current school year because his school was unable to meet his needs. She said that a reintegration plan to secure B’s return to full-time education had been unsuccessful, and he was only attending three times a week for an hour and a half each session. Ms M complained the Council had refused to provide therapies in the EHC Plan when B was unable to attend school.
2. Ms M also complained about delay in the Spring 2023 annual review of B’s EHC Plan.
3. Ms M said B was suffering severe anxiety. She says she had incurred significant costs arranging therapy for B and has been unable to work as she had to look after B at home.

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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 injustice we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
8. 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)
9. 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.
10. 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.
11. 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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How I considered this complaint

12. I have considered information provided by Ms M and the Council.
13. Ms M and the Council had the opportunity to consider my draft decision. I have considered the comments received.
14. 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 found

15. Ms M’s son, B, has an education, health and care (EHC) plan maintained by the Council. He was a pupil at an independent special school from Spring 2022.
16. Ms M says she raised concerns about School A’s ability to meet her child’s needs and the provision in the EHC Plan from early 2023. The Council however says no concerns were raised at the annual review in Spring 2023. Documents I have seen from that review state B’s attendance was 84% and for some outcomes he was making more than expected progress.
17. The Council says it first became aware of Ms M’s concerns in September 2023 when Ms M asked for a draft amended EHC Plan to be prepared and referenced challenges B was experiencing at school. Attendance records show B was attending, but was often late or unwell, due to anxiety about school.
18. In November 2023 B stopped attending school completely due to anxiety. The school marked absence as unauthorised. The school advised B should return to school or it would consider action for non-attendance.
19. The Council told me that it had a call with Ms M in late November and Ms M raised the possibility of tuition. A record of this meeting shows the Council told Ms M it would explore this but noted it was ‘spending a significant amount of money’ funding the place at the school.
20. By mid-December the school had prepared an incremental return-to-school plan for B to attempt a return after the holidays. B did attend school briefly in mid-January but felt overwhelmed and school agreed to try again the next week. B attended twice in the week of 19 January. The Council says the school intended to gradually increase attendance, but this was not successful as when B attended school, he required constant 1:1 support and his behaviour posed challenges for staff and other pupils.
21. The Council says the school advised in mid-February the current arrangements were unsustainable, and an alternative placement and emergency review of the EHC Plan were needed. The school met with Ms M and said it would continue with a reduced timetable while the Council identified a more suitable school.
22. By mid-March another school had been identified with a start date in May/June. The Council says B was attending 65% of planned sessions, but the planned sessions were below fulltime attendance.
23. The Council says the school continued to support B on a reduced timetable until B started their new school, which was in June.
24. In Spring 2024 Ms M made a formal complaint to the Council. Ms M told the Council her child had been unable to attend school for much of the past year, and reintegration had not been successful. Ms M said the school was sometimes unable to provide support staff for her child. Ms M said her child was currently attending three times per week for 1.5 hours each time, making a total of 4.5 hours education.
25. Ms M told us there had been lengthy discussions with the Council about safeguarding, exclusion from school activities and trips, and inability to provide therapies in the EHC Plan.
26. Ms M also complained about the handling of an annual review meeting in Spring 2023 when she had not been given the reports sufficiently in advance and the school had advised her child could only remain there one more year and a different secondary placement would be required.
27. Ms M says a draft EHC Plan was not sent until seven months after the meeting, when this should have been sent within one month, and the draft did not include updated advice, so she had to ask for more time to amend it. The Council then finalised the Plan shortly before the next (emergency) review meeting in Spring 2024. Ms M said this draft was used for school consults and only one school was willing to take B.
28. The Council acknowledged that despite adjustments to the timetable, and support strategies, efforts to reintegrate B from November 2023 were not successful. The Council told me it was actively involved in supporting reintegration into school and finding an alternative placement but did not make a formal decision about s.19 education at the time. It says this is because the school was trialling a range of strategies and these efforts were ongoing and regularly reviewed with Ms M. B remained on roll, and the Council was funding the placement. It says it worked closely with the family to find a more suitable setting once it became clear the school could no longer meet needs. The Council says this approach is consistent with guidance, the graduated approach and inclusive education.
29. Ms M complained B had not had speech or occupational therapy or teaching assistant support while at home. Ms M says she had to fund therapy at home.
30. The Council said B’s school was unable to deliver therapy outside school and pointed out that it was a parent’s responsibility to ensure their child attended school.
31. The Council acknowledged the 2023 annual review of B’s EHC Plan had taken eight months too long and apologised for the delay. The Council acknowledged an emergency review held in Spring 2024 was also subject to delays. The Council offered a payment of £800 to acknowledge the impact of the delays, and a further £50 to recognise delays in the complaint response.
32. Unhappy with the Council’s response, Ms M asked the Council to respond at the second stage of the complaints process. She said that B’s irregular attendance was a result of the school’s inability to meet his needs and objected to the Council’s suggestion it was her responsibility to ensure his attendance. She expressed her dissatisfaction with the plan to secure B’s return to a school which she said was unable to meet his needs. She complained the Council had not arranged provision when B was unable to attend and pointed to the Council’s ‘absolute duty’ to secure the special educational provision in B’s EHC plan. She complained about the provision when B attended school, and the Council’s failure to obtain advice for the 2023 review of B’s EHC Plan.
33. The Council responded in November 2024. The Council did not uphold Ms M’s complaint about the Council’s failure to provide B with suitable education.

Relevant law and guidance

EHC Plan reviews

34. 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) 
35. 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.
36. 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) 

Alternative provision 

37. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision. Where a child with an EHC Plan is unable to attend school we expect councils to deliver the provision to the extent this is possible outside of school.
38. 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)
39. 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
40. 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.

41. 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.

Part-time timetables

42. The Department for Education 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. 

Findings

What I have and have not investigated

43. Ms M came to us in late 2024. We usually only look at complaints for the previous twelve months. I have exercised discretion to consider the period from September 2023, when the Council first became aware Ms M had concerns. This is just over twelve months before Ms M brought her complaint to the Ombudsman, and the Council has included it in its consideration of the complaint.
44. I have not investigated the suitability of the school. This is not a matter within our expertise. Only a Council or Tribunal can decide what setting to name on an EHC Plan.
45. I cannot investigate the actions of the school; schools are not within our jurisdiction.
46. I have investigated up to June 2024 when B started their new school.

Annual review

47. The Council decided to amend B’s EHC Plan following the annual review meeting in Spring 2023. It should have issued a final amended Plan by Summer 2023. It issued the final amended Plan in early 2024, 29 weeks late. This is fault. The delay denied Ms M a right of appeal at a time when she had lost confidence in the school named in the EHC Plan. This was an injustice.

The Council’s response when B was unable to attend school

48. Ms M complains B missed a considerable amount of education when he was unable to attend school and did not receive the special educational provision in his Plan.
49. The Council has a duty under s.19 Education Act 1996 to arrange suitable education for children who would not otherwise receive suitable education. The Council is not expected to intervene where it is satisfied that suitable arrangements are in place.
50. The Council became aware of Ms M’s concerns about the school in September 2023 and was aware B had stopped attending at all in November. Initially it told Ms M it would consider tuition outside of school. I can see no evidence it did explore this at that time.
51. We expect Councils to set out their rationale for whether a s.19 duty exists contemporaneously, and to provide written decisions with reasons to families when s.19 is requested. The Council failed to do so, this was fault.
52. The Council says the school had put in place suitable arrangements to reintegrate B back into school. Therefore, its view was it did not need to provide s.19 education in November. The Council should have shared its thinking with Ms M at the time and explained if there was any route to challenge its decision. However, we cannot challenge the Council’s judgement B should try reintegration. (Local Government Act 1974, section 34(3), as amended)
53. The Council also has a separate duty to secure the special educational provision specified in a child’s EHC Plan. (Children and Families Act 2014, section 42) The Council’s view was that B would access the special educational provision and therapies when he started reattending school.
54. We expect Councils to keep cases of children out of school under review until the child is successfully attending again. By mid-February 2024 it was accepted reintegration was not going to be successful. The school asked the Council to find another setting, and the Council agreed. I consider the Council should have considered afresh at this point whether it owed B a s.19 duty to supplement the small amount of education he was accessing in school. Failure to consider this was fault. There was obviously going to be a gap in education while a new placement was found, and B was only managing 4.5 hours education per week on-site. B was also not in school enough to access the special educational provision and therapies in his EHC Plan.
55. Given B’s anxiety it is not possible to say that B could have attended offsite alternative provision rather than alternative education within the home. It is therefore too speculative to say Ms M’s employment would not have been affected if there had been no fault. Ms M is likely to have had to support B at home in any event.
56. B started their new school in June which ended the Council’s duty under s.19.

Injustice

57. Ms M was put to additional time and trouble due to the delayed final EHC Plan and lost a right of appeal at a time when she was dissatisfied with B’s provision and may have wished to challenge the Plan. The Council has apologised for the delay and offered a symbolic payment of £850 for delays in the EHC Plan review process and complaint process. I consider this is a suitable remedy for the injustice caused by this delay.
58. I find the Council should have considered provision of alternative education and securing special educational provision otherwise than at school once there was evidence the reintegration plan had failed in mid-February. It is speculative what it may have decided or how much provision B could have accessed, but the uncertainty whether more provision may have been made is an injustice.

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Agreed action

Within four weeks of my final decision:

59. The Council will apologise to Ms M for the additional fault and injustice identified in this decision statement.
60. The Council will pay Ms M the £850 to acknowledge the impact of the delayed EHC Plan / reviews and complaint process if it has not already done so.
61. The Council will pay Ms M, on behalf of B, £1000 to acknowledge the distress and uncertainty whether B may have received more education, including specialist provision in his Plan, between February and May 2024.
62. I have not made any recommendations for service improvements. The faults identified in this decision statement about delayed reviews and monitoring children with EHC Plans out of school are ones already being addressed in an Improvement Plan the Council has agreed with the Department of Education.
63. The Council will provide us with evidence it has complied with the above actions.

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Decision

64. Fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman