Summary: Ms X complained the Council has not provided Miss Y with a suitable education since 2023. She says this impacted her Miss Y’s education and caused her avoidable distress. We find the Council at fault which caused Ms X and Miss Y injustice. The Council will apologise and make a payment to Ms X and Miss Y.

The complaint

1. Ms X complains the Council:

1. has not provided her child, Miss Y, with a suitable education since 2023;
2. has not provided her with a copy of her Miss Y’s Education Health and Care Plan; and
3. has not invited her to meetings about her Miss Y’s education since 2023.

2. Ms X says this has impacted her child’s education. She says it has also caused her avoidable and unnecessary distress.

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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. 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)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)
7. 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)
8. 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.

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What I have and have not investigated

9. Ms X complained to us in December 2024. She first complained to the Council in March 2023, and did not receive her final complaint response until May 2024. She waited a further seven months before making her complaint to the Ombudsman. For this reason, I consider it is reasonable to exercise discretion and investigate from March 2023.
10. Regarding part a of the complaint, Ms X also complains about the contents of Miss Y’s EHC Plan. This is appealable to the SEND Tribunal and therefore I cannot consider this specific matter. For this reason, when investigating part a of the complaint, I have only investigated whether the Council provided suitable education and provided the provision set out in Miss Y’s EHC Plan.
11. Regarding part c of the complaint, Ms X complains about the actions of children’s social care. There are ongoing court proceedings and therefore I cannot consider these matters. For this reason, when investigating part c of the complaint, I have only investigated whether the Council invited Ms X to meetings to review Miss Y’s EHC Plan.

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How I considered this complaint

12. I considered the information and documents provided by Ms X and the Council. Ms X and the Council had an opportunity to comment on a draft of this decision. I considered all comments received before making this final decision.
13. I also considered the relevant statutory guidance, and Council’s policy, as set out below.
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

What should have happened

EHC Plans (part b of the complaint)

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

• Section I: The name and/or type of educational placement 

17. 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.

Suitable education (part a of the complaint)

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 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. 
21. Where a child or young person moves to another council, the ‘old’ council must transfer the EHC Plan to the ‘new’ council. The new council must make sure the provision in the EHC Plan begins on the day of the move or within 15 working days of becoming aware of the move if this is later. The new council must review the EHC Plan either within 12 months of it last being reviewed or three months of the date of the transfer, whichever is the later date. (Section 15 Special Educational Needs and Disability Regulations 2014) 

What happened

22. Miss Y had an EHC Plan. The Plan included the following provision:
• twice weekly therapeutic provision
• twice weekly social skills provision
• daily emotional wellbeing provision
23. In March 2023, Miss Y was temporarily excluded from her education placement. Ms X made a formal complaint.
24. In April, the Council held an EHC Plan review meeting, and Ms X attended. Ms X requested several amendments to the Plan. The school informed the Council it wanted to end Miss Y’s placement.
25. Ms X contacted several officers in the Council requesting further meetings regarding Miss Y’s EHC Plan and future school placement. The Council declined her requests.
26. In June, the Council agreed to provide Miss Y with interim tuition. It organised interim tuition to begin in September. It sent out consultations to other schools.
27. In September, the Council provided Miss X with five hours online tuition per week of English and maths tuition.
28. In February 2024, the Council increased Miss Y’s provision to 15 hours per week face to face tuition.
29. In March 2024, the Council issued its stage one complaint response. It apologised to Ms X for the significant delay.
30. In July 2024, the Council issued Miss Y’s finalised EHC Plan. It did not provide a copy to Ms X. The next day, Miss Y moved out of Kent, and her EHC Plan transferred to Council B.
31. To date, Ms X is yet to receive a copy of Miss Y’s EHC Plan.

Analysis

Education provision (part a of the complaint)

32. The Code says councils must provide alternative education provision on the sixth day after a child is permanently excluded. Miss Y was excluded in March 2023, however this was not a permanent exclusion. Miss Y’s placement ended in mid-June 2023. At this point the Council began consulting with other schools, which showed good practice. The Council arranged alternative provision for Miss Y from September 2023. The Council’s delay providing alternative provision was fault. This caused Miss Y to miss half a term of education in summer term.
33. The online tuition provided by the Council from September 2023 amounted to a part time timetable. The Council tells the Ombudsman this was a short-term solution to support Miss Y to reengage with education. I consider the Council properly satisfied itself the online tuition met Miss Y’s age, ability and aptitude. I am also satisfied the Council used the part time timetable as a temporary solution whilst it was consulting with other schools. The Council accepts during the time it provided Miss Y with online tuition, it was not providing her the full provision detailed in Miss Y’s EHC Plan. This is fault. I consider the injustice to Miss Y to be limited, because she was receiving educational provision during this time.

Providing a copy of the EHC Plan and meetings (part b and c of the complaint)

34. The Council held an annual review meeting in April 2023 which Ms X attended. Miss Y’s placement gave the Council notice to cease its placement for Miss Y. Therefore, the Council needed to amend Section I in Miss Y’s Plan. We expect councils to follow the statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. The Code says councils should send parents or young people a copy of the EHC Plan and a copy of the proposed amendments within four weeks of the meeting. The Council did not do so. This is fault which caused avoidable and unnecessary distress and uncertainty to Ms X.
35. Case law says the councils should issue a finalised EHC Plan within twelve weeks of a review meeting. The Council should have issued Miss Y’s finalised EHC Plan by mid-June 2023. It did not issue Miss Y’s finalised EHC Plan until mid-July 2024. This delay of 13 months is fault which caused Ms X avoidable and unnecessary uncertainty. I consider the delay caused limited injustice to Miss Y because the Council did not amend the provision detailed in the EHC Plan.
36. The Code says councils must complete an EHC Plan review within 12 months of the first EHC Plan and within 12 months of any later reviews. The Council accepts it did not hold an annual review meeting in 2024, which is fault. This fault caused Ms X to believe she had not been invited to the annual review meeting which caused her additional avoidable and unnecessary distress and frustration.
37. The Code says councils must advise families of the right to appeal the final Plan to the Tribunal. The Council did not provide Ms X with a copy of the finalised Plan or her right to appeal once it had issued Miss Y’s finalised Plan in July 2024. Over a year later, the Council is still yet to do so. This is fault which caused Ms X further avoidable distress and frustrated her right to appeal.

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Action

38. The Council told the Ombudsman it has recently reviewed its processes for its alternative education provision and reminded all staff about EHC Plan review statutory and case law timeframes. Therefore, I do not consider further service improvements are appropriate in this case.
39. Within four weeks of my final decision, the Council has agreed to:
1. provide a written apology to Miss Y for not providing her with education from mid-June 2023 until the end of the summer term, and not providing her with the provision detailed in her EHC Plan from mid-June 2023 until February 2024.
2. make a payment of £500 to Miss Y in consultation with her care team to remedy the injustice caused by the loss of half a term of education and not providing her with the provision detailed in her EHC Plan from mid-June 2023 until February 2024. In arriving at this figure, I considered our published guidance on remedies and Miss Y’s individual circumstances. I consider this amount is appropriate and proportionate to the level of injustice caused.
3. provide a written apology to Ms X for the unnecessary and avoidable distress, uncertainty and frustration caused to her by not following statutory timeframes when reviewing the Plan, not providing her with a copy of the Plan and frustrating her appeal right.
4. make a payment of £500 to Ms X to remedy the unnecessary and avoidable distress, uncertainty and frustration caused to her by not following statutory timeframes when reviewing the Plan, not providing her with a copy of the Plan and frustrating her appeal right.
5. provide Ms X with a copy of the EHC Plan issued in July 2024.
40. 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.
41. The Council should provide us with evidence it has complied with the above actions.

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Decision

42. I find fault causing injustice. The Council will apologise and make a payment to Ms X and Miss Y to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman