Summary: Mrs X complained the Council delayed issuing her child’s education, health and care (EHC) Plan, it failed to provide the provision outlined within the Plan and it failed to provide Y with a suitable education when he stopped attending school. The Council is at fault for missing statutory deadlines with regards to issuing the EHC Plan and for failing to consider its Section 19 duty properly. This caused frustration and uncertainty. We are unable to investigate Mrs X’s complaint regarding the provision in the Plan due to restrictions on our jurisdiction. The Council has agreed to remedy the injustice caused by the identified faults and implement service improvements.

The complaint

1. Mrs X complains the Council has failed to provide her child with a suitable education and the provision in his education, health and care plan. Mrs X says this has caused a detrimental impact to her child because he has not had a full-time education since October 2022.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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)
5. 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)
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. 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)
8. 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

9. 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). For this reason, I am unable to investigate any matters that occurred prior to October 2023.
10. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal…such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.
11. Mrs X has appealed Section B (Y’s special educational needs), Section F (the educational provision) and Section I (the placement). Therefore, I am unable to investigate the loss of provision from March 2024.

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How I considered this complaint

12. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
13. Mrs X and the Council had an opportunity to comment on a draft of this decision. I considered the comments received before making this final decision.

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What I found

Relevant law and guidance

Education, health and care plans

14. 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. 
15. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 

16. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following: 

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply);  
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.
   

17. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes: 

• the child’s educational placement; 
• medical advice and information from health care professionals involved with the child; 
• psychological advice and information from an Educational Psychologist (EP); 
• social care advice and information; 
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and 
• any other advice and information the council considers appropriate for a satisfactory assessment. 

18. The council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”. In making this decision the council and the person providing the advice should ensure the advice remains current.  
19. Those consulted have a maximum of six weeks to provide the advice. 
20. 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)  
21. 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. 

EHC Plan appeal rights

22. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the SEND Tribunal in this decision statement. Only the Tribunal or the Council can direct changes to the sections of an EHC Plan about the child’s needs, education, or the name of the educational placement. The Ombudsman cannot do this.
23. There is a right of appeal to the SEND Tribunal against:
• a decision not to amend an EHC Plan following a review; and
• once a Council issues a final EHC Plan, the description of the child’s SEN, the SEN provision specified, the school or placement specified, or the fact that no school or other placement is specified.
24. 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)
25. This means if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or a consequence of, a parent or young person’s disagreement about the SEN provision or educational placement in the EHC Plan, we cannot investigate a lack of SEN provision, or alternative educational provision.
26. 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.
27. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
28. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example: 
• delays in the process before an appeal right started;
• where there is support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to the appeal; and
• alternative education when the reason the child or young person is not attending education is, in our view, not connected to or a consequence of a matter that was, or could have been, part of an appeal to the Tribunal.  

Alternative education

29. 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.
30. 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)
31. 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)
32. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
33. 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))
34. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
35. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
36. Councils should keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases

What happened

37. What follows is a brief chronology of events. It does not contain details of every event that happened.
38. In May 2023, Y stopped attending school. In September 2023, Mrs X made a medical referral to the Council and requested suitable education be arranged under its Section 19 duty.
39. An early help assessment was conducted on 11 October 2023. The Council decided to provide Y with alternative provision. On 30 December 2023, a risk assessment was completed by the tuition company. The risk assessment shows the amount of alternative provision agreed as 2 hours per week as Mrs X does not think Y will be able to cope with more with the option of increasing as time goes on. I understand Y was receiving only one hour of tuition. The Council says it offered 13 hours of online learning but this was refused by Mrs X because it was with a small group of other students. Mrs X says the Council did not make this offer and if it had, she would have accepted it.
40. In January 2024 there was a review of the alternative provision and it was decided to increase it to two hours. The Council says Mrs X constantly declined increasing the sessions and the sessions went from two hours back to one hour due to Y’s lack of engagement.
41. Y received alternative provision up until July 2024.

Y’s EHC Plan and Mrs X’s complaint

42. On 27 June 2023, the Council received a request for the assessment of Y’s education, health and care needs. On 27 July 2023, the Council agreed to assess Y’s needs. On the same day, the Council sent requests for advice from professionals.
43. The Council received advice from the EP on 8 December 2023. Within 11 days the Council sent a draft EHC Plan to Mrs X for comments.
44. The Council finalised Y’s EHC Plan on 11 March 2024. Mrs X has appealed Section B (Y’s special educational needs), Section F (the educational provision) and Section I (the placement).
45. Mrs X complained to the Council about the delay in finalising Y’s EHC Plan and not providing him with a suitable education. The Council upheld the complaint regarding delay in issuing the EHC Plan and offered a remedy of £400 for the injustice caused by this. It also apologised.
46. The Council did not uphold Mrs X’s complaint about Y’s education because it was satisfied that suitable arrangements for Y’s education were put in place with Mrs X’s agreement. Mrs X brought her complaint to the Ombudsman because she remained unhappy about the level of alternative provision the Council arranged and says she did not refuse any offers of alternative provision.

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Analysis

Delays in finalising Y’s EHC Plan

47. The whole process from the point when an assessment is requested until the final EHC plan is issued must take no more than 20 weeks. The Council received the request on 27 June 2023 and should have issued the final EHC Plan by 14 November 2023. The Council delayed finalising Y’s EHC Plan by 17 weeks. I consider this delay a service failure because it was caused by the shortage of EPs and the summer holidays were also a factor. The Council upheld Mrs X’s complaint regarding the delay and it has apologised.
48. I am satisfied this caused Mrs X an injustice. It caused frustration, uncertainty and delayed Mrs X’s appeal rights. The Council has offered Mrs X a payment of £400 to remedy the injustice caused by the fault. This remedy offer is in line with our Guidance on Remedies. There is nothing further we can add.

Y’s education

49. Mrs X complains Y has not had a full-time education since 2022. As explained above, my investigation is focused on matters from October 2023 and I cannot consider any loss of provision from March 2024 onwards as it falls outside the Ombudsman’s jurisdiction.
50. It is accepted that the Council should provide Y with alternative education under Section 19. This is a complaint about the suitability of the alternative education offered by the Council.
51. There is a disagreement between the Council and Mrs X with regards to the suitability of the alternative provision. The Council has provided me with a risk assessment from the tuition company that says Mrs X refused 13 hours of online learning and one to two hours of face to face tuition was arranged because she did not think Y could cope with more. There is no recording of this conversation so I am unable to ascertain what Mrs X said. My role is to look at how the Council decided one or two hours of face to tuition was suitable for Y, if it kept this under review and increased it accordingly.
52. There is some evidence of the Council reviewing the alternative provision. However, it tells me the number of hours dropped from two hours to one hour because of Y’s lack of engagement but this is not supported by the evidence the Council has provided me with. The section ‘Student Engagement’ in the session reports from October 2023 to March 2024 is left blank by the tutor. The Council has provided me with further reports from the tutor regarding the sessions from October 2023 to the end of March 2024 and they show ‘Y completed all tasks’ and ‘engaged well in every session’. The Council’s statement to me that it did not increase the level of provision because Y was not engaging and Mrs X declined an increase is not supported by any evidence. I understand it is now due process for council officers to follow up in writing any discussions regarding offers of alternative provision.
53. The Council has pointed me towards the risk assessment to demonstrate how the Council considered 2 hours was suitable for Y, however, this document does not demonstrate why he is unable to cope with a full-time education and it does not show how the Council arrived at the decision that only 2 hours face to face was suitable. From the evidence the Council has sent to me, I am unable to see this consideration by the Council. This is fault.
54. I cannot say what level of education would have been provided if the Council had properly considered its duty. I have therefore recommended a symbolic payment for uncertainty in line with our Guidance on Remedies.

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Agreed Action

55. To remedy the injustice caused by the identified faults, the Council has agreed that within four weeks of this final decision, it will:
• Apologise in writing to Mrs X
• Pay Mrs X £500 for the avoidable distress caused by the Council’s failure to consider its Section 19 duty effectively.
56. The Council has also agreed that within three months of this final decision, it will remind relevant staff about the importance of recording how the alternative provision it arranges is suitable to the child’s age, ability and aptitude and to any special educational needs the child may have when arranging and reviewing the provision.
57. The Council will provide us with evidence it has complied with the above actions.

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Decision

58. 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