Summary: Mrs X complained the Council failed to complete the annual review of her son’s Education Health and Care Plan within the statutory timeframes. She also complained he missed education and specialist provision he is entitled to and that communication with the Council was poor. We found fault by the Council in all matters. The Council agreed to apologise to Mrs X and make her a symbolic payment in recognition of her son’s missed provision and the uncertainty, distress and frustration caused to her.

The complaint

1. Mrs X complained the Council failed to complete the annual review of her son, Y’s, Education Health and Care (EHC) plan within the statutory timeframe and about the contents of his EHC plan. She also complained Y is not receiving a full-time education or the specialist provision in his EHC plan.
2. Mrs X stated the Council’s actions mean her son is not receiving the educational provision he is entitled to. It has also caused her distress, frustration and financial hardship.

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The Ombudsman’s role and powers

3. 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)
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 the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)

6. 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)
7. 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

8. I have investigated Mrs X’s concerns about the Council failing to issue Y’s EHC plan within the statutory timeframe and her concerns about him not receiving a full-time education or the specialist provision in his plan. I have also investigated her concerns about poor communication from the Council.
9. I have not investigated Mrs X’s concerns about the contents of Y’s EHC Plan. This is because of the restriction set out in paragraph 3.

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How I considered this complaint

10. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
11. 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

12. 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. 
13. 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) 
14. 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.
15. 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.

Maintaining the EHC Plan

16. 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)  
17. 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. 

Alternative Provision

18. 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.
19. 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)
20. 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)
21. 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’)

Part-time timetables

22. 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. 
23. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, “Out of school…out of mind?”, says 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.

Ombudsman focus report

24. 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
25. 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.
26. 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.

What happened

27. This section sets out the key events in this case. It is not intended to be a detailed chronology.
28. Y has an EHC Plan. The annual review of his plan was due on 26 September 2023.
29. In January 2024 Y’s school put him on a part-time timetable because he was struggling.
30. In April 2024 the Council began the annual review of Y’s EHC Plan. The outcome of the review was that Y’s plan should be amended to reflect changes in his needs and provision. It also found Y’s placement should be changed from a mainstream school to a specialist placement.
31. At the start of the summer term the Council became aware that Y was on a part time timetable, attending school in the morning only.
32. In July Mrs X complained to the Council about delay in issuing Y with a final EHC Plan. The Council’s reply accepted it had failed to meet the statutory timeframe for completing Y’s annual review. It apologised and said this was due to officer error which was being addressed during the officer’s regular supervision. It said a final EHC Plan would be issued by 13 August.
33. In August the Council referred Y’s case to its Governance Panel for consideration.
34. On 22 August the Council completed a draft EHC Plan for Y.
35. In September Y tried to attend school on a full-time basis but was unable to do so. His timetable was reduced so he attended for two full days per week and three half days.
36. Also in September the Council’s Panel considered the request for Y to have a placement in a specialist setting. The panel did not agree the request, but it did agree to additional funding.
37. In November an interim review was held which resulted in additional changes being recommended to Y’s EHC Plan.
38. Also in November Mrs X escalated her complaint to stage two of the Council’s complaints procedure. She complained that Y’s final EHC Plan was yet to be issued despite the reassurances in the Council’s reply to her stage one complaint. She said Y was on a reduced timetable at school and not receiving the support he needed. She also complained about errors in the draft EHC Plan.
39. In early December the Council replied to Mrs X’s complaint. It said Y’s EHC Plan was still being finalised. It accepted it was responsible for delay in this matter, and this frustrated her appeal rights. The reply also stated Y was on a reduced timetable and he had attended 79% of the school sessions available to him. It did not make a finding on this part of Mrs X’s complaint.
40. The Council’s response stated it would consider a financial remedy for the frustration and uncertainty caused by delay in issuing Y’s EHC Plan. It also said it would consider Mrs X’s comments on Y’s draft ECH Plan and share the outcome of any panel meetings with her. It would also discuss with Y’s school how to best use resources allocated to him to meet his needs.
41. Further to its complaint response the Council offered Mrs X £400 in recognition of the delay in issuing Y’s EHC Plan. It also asked its Panel to reconsider Y’s case and to agree to a specialist placement for him
42. Unhappy Mrs X complained to the Ombudsman. She complained about delay in issuing Y’s EHC Plan and that Y has missed education and specialist provision he is entitled to. She also complained about poor communication from the Council.
43. On 6 December the Council issued Y with a final EHC Plan.
44. On 18 December the Council’s Panel agreed to recommend a specialist placement for Y. The Council agreed to provided additional funding for Y until a specialist placement could be found.
45. In January 2025 the Council told Mrs X about the Panel’s decision.
46. Also in January the Council began consulting with specialist settings to see if a placement could be offered to Y.
47. In February Y’s school told the Council that Y was at risk of being permanently excluded.
48. Y is currently waiting for a placement at a specialist setting and remains on a reduced timetable.

Finding

Delay in completing the annual review of EHC plan

49. The annual review of Y’s EHC plan was due on 26 September 2023. The Council did not commence Y’s annual review until 22 April 2024. This is a delay of seven months. This is fault.
50. The Council proposed to amend Y’s EHC Plan and so it should have sent out details of the proposed amendments within four weeks of the annual review meeting and the final amended plan within eight weeks of the proposed amendments. Therefore it should have issued Y’s final EHC Plan by 22 July. It did not issue Y’s final EHC Plan until 6 December 2024. This is a delay of 19 weeks. This is fault.
51. The identified delay caused Mrs X frustration and uncertainty. It also frustrated her appeal rights to the SEND Tribunal. This is injustice.
52. I note the Council’s complaint response recognised the injustice caused to Mrs X and a symbolic payment of £400 was made to her. However I do not consider this remedy sufficiently addressed the injustice caused to her by the significant delay in completing the annual review and issuing a final EHC Plan for Y.
53. The delay also meant that Y missed the opportunity to access the provision set out in his plan whilst the Council finalised it. This is injustice.

Missed provision

54. The law is clear that councils must provide alternative provision under Section 19 if no suitable educational provision has been made for a child who is missing education through exclusion, illness or otherwise.
55. The Council became aware at the start of the 2024 summer term that Y was not attending school full time and so the Council’s section 19 duty became engaged from this point.
56. The evidence shows the Council has not provided any alternative provision for the time when Y is not in school. Furthermore no evidence has been provided demonstrating that any attempts to source alternative provision were made. This is fault. As a result Y has missed, and continues, to miss education he is entitled to. This is injustice.
57. I note the Council agreed to additional funding for Y in September 2024, but it has been unable to explain if and how the funding has been used. The Council should have kept Y’s case under review as he was on a reduced timetable. It has not done so. This is I fault.
58. Y was placed on a part-time timetable because his school was having problems meeting his needs. It has agreed that Y needs a placement in a specialist setting however it did not start consulting such placements until his EHC Plan was finalised. I consider the Council would have begun doing so sooner, save for the delay in finalising Y’s plan. This is fault which adds to the injustice identified in paragraph 53.
59. The Council has provided evidence that it has been actively consulting settings to find a suitable placement for Y, since it issued his EHC Plan. Unfortunately this has not resulted in a placement being found for Y. While I understand there is a limited supply of suitable placements the Council has a duty to arrange suitable education for Y. Its failure to find Y a placement amounts to service failure.

Communication

60. The Council accepts its communication with Mrs X was below the expected standards. This is fault which caused Mrs X additional frustration. This is injustice.

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Agreed Action

61. To remedy the injustice to Mrs X, the Council will within one month of final decision:
• Apologise to Mrs X for the fault and injustice identified above. 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.
• Pay Mrs X an additional £800 for the distress, uncertainty and frustration caused by the delay in issuing a final EHC Plan for Y. This equates to £100 per month for each month of delay the Council has not provided a remedy for.
• Pay Mrs X £3600 in recognition of education and specialist provision missed by Y. This amounts to £900 for each term from summer term 2024 onwards. The remedy considers that Y has received some education at his school and some of the specialist provision in his plan.

62. The Council should provide us with evidence it has complied with the above actions.

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Decision

63. I find fault causing injustice. The Council has agreed to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman