Summary: We uphold the complaint. The Council delayed reviewing an Education, Health and Care Plan. And it did not check on the delivery of the contents of the Education, Health and Care Plan after the child stopped attending school. This creates some uncertainty about whether the child might have received more education but for the fault. It also delayed the parent’s appeal rights. The Council has agreed to our recommendations to provide a remedy for the distress these faults led to.

The complaint

1. Mrs P complains the Council:

• delayed finalising her son’s (X) Education, Health and Care (EHC) Plan after an emergency review;
• did not respond to contacts from her and the school;
• did not do enough to put measures in place after X was excluded from his school. He has not had enough educational opportunities; nor has he benefitted from receiving the contents of his EHC Plan.

2. Mrs P says the consequences of these faults is X will not do schoolwork. The faults have affected the whole family’s mental health.

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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. 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. 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.
6. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
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(1), 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. I have investigated events to the date of Mrs P’s complaint to the Ombudsman.

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How I considered this complaint

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

Legal and administrative background

EHC Plans

12. 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.
13. 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)  
14. 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 of Practice (“the Code”) paragraph 9.176). The Council should then produce the final EHC Plan within eight weeks of that decision.

Alternative provision

15. 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.
16. The courts have considered the circumstances where the section 19 duty applies. Case law 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 them to access. The applicable test is whether the educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
17. 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
18. 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

Background

19. This statement provides a summary of events. It is not intended to detail everything that happened.
20. X has additional educational needs due to a range of conditions. He has had an EHC Plan since infant school. This complaint relates to time at a junior school (School 1). The Council last issued X with a revised EHC Plan on 15 November 2022.

Events I have investigated

21. On 23 November 2023 School 1 hosted a review meeting for X’s EHC Plan. School 1 says it sent the Council a record of the meeting on 1 December.
22. In mid-December 2023 the Council agreed to amend X’s EHC Plan to look for a specialist school. Its reasons were because of significant changes in X’s behaviour at school. It began to consult with special schools.
23. The Council says it did not begin working on amending X’s EHC Plan until May 2024, when it reallocated the case to a new caseworker.
24. By the start of the Autumn 2024 term, the Council had found a new school for X with a start date of the Autumn 2025 term. It decided X should stay at School 1 for the year to then. It agreed to School 1’s request for increased funding to allow it to deliver the contents of X’s EHC Plan.
25. The Council issued its final EHC Plan on 25 September. Some of the provision set out in section F of the Plan included a range of measures to help X and staff working with him cope with his behavioural issues.
26. In October School 1 contacted the Council’s Education Welfare Officer, to advise it was concerned X was at risk of permanent exclusion. The Officer gave the School some advice about how it could source some alternative provision, as an interim measure.
27. In early November the Council’s Special Educational Needs and Disability (SEND) Team’s caseworker was in contact with a member of School 1’s staff. Her records of those contacts note X was not attending school. The School was sending a member of staff to the family home for tutoring, although all had doubts about the chances of getting X to participate.
28. In December 2024 the Council’s SEND Decision Making Group did not agree to consult with alternative settings. That was because its view was it was School 1’s responsibility to provide X with education to the end of the school year.
29. In January 2025 School 1 provided an update on the alternative provision X was receiving. It noted the home tutoring and sessions at a SEND play centre. It was also sending work home. But this was not working, partly as X was refusing to do the work. The School noted other alternative provision it had planned to start.
30. Mrs P complained to the Council about X’s lack of education.
31. At the end of January Mrs P complained to the Ombudsman.

Was there fault by the Council?

EHC Plan review

32. Generally, we expect councils to follow the timescales set out in the Code which is statutory guidance. We measure a council’s performance against the Code and we are likely to find fault where there are significant breaches of timescales.
33. The Council’s previous review of X’s EHC Plan was in mid-November 2022. That means, to comply with the requirements in the Code, the Council should have held a review meeting by mid-October 2023 to allow it to make a decision on X’s EHC needs assessment by mid-November, the anniversary of his previous Plan. It should then have issued a final EHC Plan by 10 January 2024.
34. The Council did not issue a revised EHC Plan until 25 September 2024. That is a delay of over eight months. It was not in line with the requirements of the Code and so was fault.

Alternative provision and the delivery of the contents of X’s EHC Plan

35. My review of the Council’s records show it was in early contact with School 1 about the academic year before X started at a new school. School 1 asked for extra funding. School 1 did not say it was unable to meet X’s educational needs – it asked the Council for extra funding so it could meet the provision set out in Section F of X’s EHC Plan. So, at that time, the Council was entitled to take the view that X had education that was available and accessible to him. This meant it did not then have a duty under section 19 of the Education Act.
36. By the middle of the Autumn term 2024 X was not attending School 1. The School was attempting to providing X with alternative education. It was appropriate for the Council to expect School 1 to manage its educational provision; working to provide X with alternative education and a path back to attending the school. So I do not find fault that the Council did not then itself arrange alternative provision.
37. But the Council also had duties to provide X with the contents of his EHC Plan, under section 42 of the Education Act. This duty remained the Council’s; irrespective of the fact it was asking School 1 to deliver the EHC Plan.
38. Where a pupil with an EHC Plan is not attending a school we expect councils to try and secure as much Section F provision as is possible in the home or alternative provision setting.
39. We would not expect a council to take an interest in the day-to-day details of a school’s EHC Plan delivery, which would be for the school to decide. But when, as here (X had stopped attending school), there was a significant change, I would have expected to see some reference to the Council’s officers’ awareness of this issue. And of the need for the Council to check with School 1 and alternative providers (initially and at intervals) about what in X’s EHC Plan they could deliver and their plan for doing so.
40. Without such an oversight, the Council had no way of knowing if X’s EHC Plan needed reviewing. So to not have this record of any oversight was fault.

Did the fault cause an injustice?

41. It is hard to know the extent to which the faults identified affected X’s ability to access education. Some of the provision School 1 attempted was not successful and would likely have been unsuccessful even if there had been no fault by the Council. So I am not able to say, even on the balance of probabilities, whether X might have received more education if there had been no fault by the Council. But that uncertainty is itself an injustice that demands a remedy.
42. The delay in issuing the final EHC Plan delayed Mrs P’s appeal rights which will have caused her avoidable frustration and further uncertainty about what might have happened but for the fault.

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Agreed action

43. I recommended that, within a month of my final decision, the Council:
• apologise. 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.
• make Mrs P a symbolic payment of £500 for the uncertainty caused by the delay in finalising X’s EHC Plan.
44. The Council has agreed to my recommendations. It should provide us with evidence it has complied with the above actions.
45. I am not making any service improvement recommendations as, in response to another complaint, the Council has advised us of a SEND and alternative provision improvement plan it is in the process of introducing.

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Decision

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

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Investigator's decision on behalf of the Ombudsman