Summary: Mr X complained the Council delayed his son, Y’s, Education, Health and Care Plan annual review. He also complained the Council has not ensured Y received education or plan provision. Mr X said this distressed him, impacted him financially and Y has not received education or plan provision. There was fault in the way the Council did not complete the annual review process within statutory timescales and did not ensure Y received education or provision. This distressed Mr X and frustrated his right of appeal to the Tribunal. Y missed education and provision for three school terms. The Council has agreed to apologise, make a financial payment and provide guidance to its staff.

The complaint

1. Mr X complained the Council delayed his son, Y’s, Education, Health and Care (EHC) plan annual review. He also complained the Council has not ensured Y received education or EHC plan provision. Mr X said this distressed him, impacted him financially and Y has not received education or plan provision.

Back to top

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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with a Council’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)
4. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
5. 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)
6. I have considered events in this case since August 2023. I reference events prior to this for context in this matter. I have not investigated earlier events as Mr X could have complained about them earlier. This is a late complaint and there is not enough reason to accept those parts of it for investigation now.

Back to top

How I considered this complaint

7. I read Mr X’s complaint and spoke to him about it on the phone.
8. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Background information

Education, Health and Care (EHC) Plan

10. A child or young person with special educational needs may have an 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. 
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)  
12. 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. 

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. 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.
15. 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;
• amendment to these elements of an EHC Plan;

16. 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)
17. 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.
18. 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. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
19. 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

20. 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.
21. 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)
22. 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)
23. 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
24. 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.

25. 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.
26. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. Elective Home Education (EHE) is distinct from education provided by a council otherwise than at school, for example when a child is too ill to attend. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.

What happened

27. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
28. Y has additional needs. The Council issued his first EHC plan in 2020. There are historic references to Y not attending education placements.
29. The Council named school Z in the EHC Plan. Y started to transition to school Z in early 2023.
30. In September 2023, Y was due to attend school Z. He did not attend due to transport issues and issues relating to his additional needs. Mr X said he wanted to remove Y from the school roll. The school confirmed it needed to hold the annual review and consider this. The school told the Council Y was not attending school.
31. School Z held Y’s annual review in November 2023. The minutes recommended the Council amend the EHC plan.
32. In January 2024, the Council recorded it did not support EHE for Y.
33. Mr X complained in February 2024. He complained the EHC Plan annual review process was overdue and educating Y was impacting him financially.
34. The Council wrote to Mr X to confirm it intended to amend Y’s plan and set out the amendments in March 2024.
35. The Council responded to Mr X’s complaint in March 2024. The response confirmed the Council issued the draft plan and would consider Mr X’s views after this. The Council accepted it did not meet statutory timescales and apologised. The response said the Council was happy to receive a further complaint about missed education and plan provision.
36. In April 2024, Mr X complained about funding for Y’s provision.
37. The Council issued Y’s EHC plan in July 2024. The plan named school Z.
38. The Council sent its stage two complaint response the following day. The response accepted the delays in issuing a new plan was fault and apologised. The Council accepted some disruption to Y’s education but said it provided education and plan provision.
39. Mr X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mr X would like the Council to provide a financial remedy.
40. In response to my enquiries the Council accepted the delays in issuing a new EHC plan and said it was awaiting information from school Z about education and provision.

My findings

Annual review and amending the EHC plan

41. It is clear from the documentation, and the Council has admitted, there have been delays in this case. The Council should have issued its decision to amend the plan by December 2023. It did not issue the letter telling Mr X of its decision until March 2024, a delay of three months.
42. The Council should have issued the amended plan by the end of January 2024. It did not issue the final EHC plan until July 2024, a delay of five months.
43. The Council accepted this delay was fault. This fault distressed Mr X and frustrated his right of appeal to the SEND Tribunal.

Missed education and EHC plan provision

44. The law, set out in paragraph 20, requires a Council to arrange suitable education for a child it knows cannot attend school due to exclusion, illness or other reasons. School Z told the Council Y was not attending in September 2023. The Council should have ensured Y received educational provision from this time.
45. When the Council issued Y’s EHC plan, it had a duty to secure the special educational provision in the plan (Section 42 Children and Families Act).
46. The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the required timeframes here amounts to fault. 
47. The Council said Y received education and provision and was waiting for information from school Z. Mr X challenged this and said Y had no education or provision. I have seen no evidence of any education or EHC plan provision. The Council has not arranged education or provision for Y. This is fault and Y missed education and EHC provision since September 2023.
48. However, as set out in paragraph 16, once an appeal right is engaged, we cannot consider matters which can be dealt with by an appeal to the Tribunal. Mr X has a right of appeal if he still wants to provide EHE for Y. We can therefore only recommend a remedy for missed education and provision for three school terms from September 2023 until July 2024.
49. Sometimes we will recommend a financial payment to the person who brought their complaint to us. This might be to reimburse a person who has suffered a quantifiable financial loss, or it might be more of a symbolic payment which serves as an acknowledgement of the distress or difficulties they have been put through. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider.
50. The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice because of fault by a Council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.

Complaint handling

51. The Council website says the Council will respond to a complaint within 15 working days. Mr X complained in April 2024. The Council responded in July 2024, three months later. This is more than the 15 days the Council stated. This is fault, frustrating Mr X.

Back to top

Agreed action

52. To remedy the outstanding injustice caused to Mr X and Y by the fault I have identified, the Council has agreed take the following action within 4 weeks of my final decision:
• Apologise to Mr X for not ensuring Y received education or the plan provision and not completing the annual review within timescales. 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 Mr X £200 as an acknowledgement of the distress and frustration the Council fault caused.
• Pay £3,600 for not ensuring Y received education or EHC plan provision for three school terms. This money should be used for Y’s benefit.
• Remind relevant staff of the Council’s duties to adhere to statutory timescales in the annual review process.
• Remind relevant staff of the Council’s duties under section 19 of the Education Act 1996 and section 42 of the Children and Families Act 2014.
• Remind relevant staff of the importance of effective complaint handling.
53. The Council should provide evidence of the actions taken to satisfy the recommendations.

Back to top

Final decision

54. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman