Summary: Mrs X complained the Council delayed issuing her child, Y’s Education, Health and Care (EHC) Plan following an annual review in 2024. She also complained it failed to put alternative provision in place when Y stopped attending school in February 2024. The Council was at fault. It delayed issuing the amended EHC Plan by eleven weeks and failed to both properly consider its alternative provision duty and have sufficient oversight of Y’s education while they were out of school between April and October 2024. Matters after October 2024 are outside of our jurisdiction as Mrs X appealed to the SEND tribunal. The Council agreed to apologise and make payments to Mrs X to acknowledge the injustice caused.

The complaint

1. Mrs X complained the Council delayed issuing her child, Y’s amended Education, Health and Care (EHC) Plan following an annual review in 2024. She also complained the Council failed to ensure Y received alternative provision when they stopped attending the named school in February 2024.
2. Mrs X said the matter has impacted on Y’s education and development and has caused distress, uncertainty and delayed SEND tribunal appeal rights.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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.
5. 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)
6. 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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How I considered this complaint

7. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
8. 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

Relevant law and guidance

Education, Health and Care Plans

9. 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.
10. 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.
11. 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).

Annual Reviews

12. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. Where the council proposes to amend an EHC Plan following a review, 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.

SEND tribunal

13. 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.
14. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.
15. 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.
16. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
17. 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).

Alternative provision and the Section 19 duty

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. 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.
20. 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.

What happened

21. Mrs X has a child, Y, who began attending secondary school in September 2023. Y has special educational needs and diagnoses of both Autism and ADHD (Attention Deficit Hyperactivity Disorder). Y has an EHC Plan which named a mainstream secondary school (School 1) in Section I of the Plan.
22. Y struggled with attending School 1 and their attendance was low. Attendance records show many of Y’s absences were because of illness and/or anxiety related issues. In early April 2024 Mrs X informed the Council that Y had stopped attending all together in February 2024. She said School 1 had said it could no longer meet Y’s needs and that they need a specialist placement.
23. School 1 held an early annual review of Y’s EHC Plan in April 2024. The records of this review note Y’s needs had changed significantly and they became burnt out and overwhelmed with attending School 1. School 1 had tried various strategies and interventions including reducing Y’s timetable, personalised break times, classroom exit cards, mentoring and therapy sessions and access to the SEND department. Mrs X suggested Y required a more specialist setting.
24. The Council notified Mrs X of its intention to amend Y’s EHC Plan in May 2024 following the review meeting. In line with statutory timescales the Council should have issued Y’s amended EHC Plan by mid-July 2024.
25. Y remained out of school for the remainder of the 2023/24 academic year and Mrs X said they did not receive any education. She said School 1 initially tried home education group sessions and some other online learning but Y could not cope with them. Records show Mrs X tried to chase the Council about alternative provision during this period but nothing was put in place.
26. From September 2024 Y remained out of school but School 1 arranged for them to receive one hour per week tuition at home.
27. Mrs X complained to the Council in early October 2024 about the delays issuing Y’s amended EHC Plan and the lack of alternative provision for Y. She said Y had no alternative provision between February and July 2024 and at the that time only had one hour a week.
28. The Council issued Y’s amended EHC Plan following the annual review in early October 2024. The Plan named School 1 in section I.
29. The Council responded to Mrs X’s complaint at the end of October 2024. It said School 1 received additional funding for Y through the EHC Plan. The Council said it would check with School 1 to see how it was supporting Y. It confirmed it had recently issued Y’s amended EHC Plan and Mrs X could appeal if she was unhappy with the content or named placement.
30. In November 2024 Mrs X appealed both the content, and the naming of School 1 in Y’s EHC Plan, to the SEND tribunal.
31. Mrs X remained unhappy and complained to us.
32. Since complaining to us the Council issued a new amended EHC Plan for Y naming a specialist school for Y from June 2025 onwards.

My findings

Annual review delays

33. Y’s annual review was held in April 2024. In line with statutory timescales the Council should have issued Y’s amended EHC Plan by mid-July 2024. The Council did not issue the amended EHC Plan until October 2024 which was a delay of eleven weeks. That was fault.

Y’s education and alternative provision

34. The Council was aware from April 2024 that Y was no longer attending School 1 despite the support it had offered. There is no evidence showing the Council considered its duty to provide alternative provision at the time or whether to take other action in line with our recommendations outlined in paragraph 20. That was fault.
35. Y did not receive any alternative provision until September 2024 when he began receiving one hour a week. Again, there is no evidence the Council had oversight of this arrangement to check it was suitable to meet Y’s needs. It is likely on balance, that one hour was not enough to meet Y’s needs although it is unclear given Y’s circumstances exactly how much they could have coped with at the time.
36. As outlined above Mrs X used her right of appeal against both the content of the EHC Plan and the naming of School 1 which she received when the Council issued the amended Plan in October. The core of the appeal was about the Council’s decision to name School 1 in Y’s EHC Plan as she felt Y’s needs could only be met in a special school, the consequence of which meant Y did not attend School 1. Therefore, I cannot investigate the period after October 2024 as it would result in me looking at the Council’s decision and reasoning to name School 1 in Y’s EHC Plan. Investigating would therefore trespass on the tribunal’s jurisdiction. In line with the reasons explained in paragraphs 14-17 this period falls outside of our jurisdiction and is therefore not something I can investigate.

Injustice

37. The annual review delays caused Mrs X distress, frustration and delayed her appeal rights to the SEND tribunal. The Council’s failure to properly consider its Section 19 duty to put alternative provision in place caused Mrs X uncertainty about whether more could have been done to support Y sooner.
38. The Council currently has an ongoing SEND action plan and a new section 19 policy which is due to be issued. We are overseeing the Council’s wider SEND transformation programme which includes actions on consideration and oversight of Section 19 duties when it is aware children are out of school. Therefore, I have not made any further service improvement recommendations.

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Action

39. Within one month of the final decision the Council agreed to take the following action:
1. Apologise to Mrs X and pay her £250 to recognise the distress, uncertainty and delayed appeal rights caused by both the delay issuing Y’s EHC Plan following the 2024 annual review and for not properly considering its Section 19 duty between April and October 2024. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended.
2. Pay Mrs X £600 to recognise the uncertainty caused to Mrs X and Y by the Council’s failure to properly consider its Section 19 duty between April and October 2024.
40. The Council should provide us with evidence it has complied with the above actions.

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Decision

41. I find fault causing injustice and the Council agreed to my recommendations to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman