Summary: Miss X complained the Council did not provide her child with full time education and failed to meet statutory time frames. She says this impacted her child’s education and emotional wellbeing. We find the Council at fault which caused injustice. The Council will a payment to remedy the injustice.

The complaint

1. Miss X complains the Council:

1. Did not provide her child with full time education from April 2022;
2. Did not detail suitable provision in her child’s EHC Plan;
3. Delayed making decisions about her child’s education; and
4. Failed to issue her child’s Education Health and Care (EHC) Plan within statutory time frames.

2. Miss X says this caused her child to miss out on education and impacted their wellbeing. She says it has also caused her avoidable and unnecessary uncertainty and 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 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 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)
7. 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)
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. Miss X complains about matters from April 2022. Miss X brought her complaint to the Ombudsman in February 2025. As I have said above, we cannot investigate late complaints unless there is good reason. Miss X first complained to the Council in August 2024. I consider it was reasonable for Miss X to complain earlier about matters from April 2022. The Council delayed issuing its final complaints response by five months. I consider had the Council completed its complaints process in line with its policy, Miss X would have had the opportunity to bring her complaint to the Ombudsman in October 2024.
10. For the reasons outlined above, I have investigated matters starting from October 2023, as this is 12 months prior to October 2024, when Miss X should have had the opportunity to bring her complaint to the Ombudsman. I will end my investigation in February 2025, when Miss X bought her complaint to us, and the Council issued its final complaints response.
11. As I have said above, the Ombudsman cannot investigate matters which have a right of appeal to a tribunal. The matters Miss X complains about in part b of her complaint are appealable to Tribunal. I consider it was reasonable for Miss X to use her right of appeal. For these reasons, I will not investigate part b of the complaint.
12. I have only considered parts a, c and d of the complaint.

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How I considered this complaint

13. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
14. Miss 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.
15. 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

Full time education (part a of the complaint)

16. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
17. 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. 
18. 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.

Decision making timeliness (part c of the complaint)

19. Our published guidance, ‘Principles of Good Administrative Practice’ says councils should take reasonable, timely decisions, based on all relevant considerations.

Education Health and Care Plan statutory time frames (part d of the complaint)

20. 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. 
21. 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) 
22. 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.
23. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer. 

What happened

24. Prior to October 2023, the Council considered its section 19 duties and decided B’s needs could be met in the mainstream school. B’s EHC Plan said B’s named school should make a bespoke package of provision to support B to attend school. It said in the meantime, the school should enable B to access lessons from home using a robot for distance learning. B’s school agreed to commission alternative online provision for B.
25. In October, B was not attending school. The school did not provide the robot for distance learning.
26. In December, B attended an introduction lesson with an online provider commissioned by the named school. The Council held an annual review meeting. Miss X asked the Council for an ‘Education Otherwise than in a School’ (EOTAS) package for B.
27. In February 2024, B started their chosen subject tuition with the online provider. The Council also discussed Miss X’s EOTAS package request at its monthly SEN panel meeting.
28. In April, the Council agreed to fund an EOTAS package from September which included online tuition for up to five GCSE subjects of B’s choice.
29. In early July, the Council held another annual review meeting. Miss X asked the Council to consider adding some more provision to B’s EOTAS package. The Council referred the request to its SEN panel meeting.
30. In August, Miss X made a formal complaint.
31. In early September, the Council considered Miss X’s request for additional EOTAS provision at its SEN panel meeting. The panel declined Miss X’s request. Shortly afterwards, it issued the draft reviewed EHC Plan. The Council responded to Miss X’s complaint. It accepted it had not issued B’s EHC Plan within the statutory time frame and explained actions it was taking to improve its service going forward.
32. Miss X asked for the SEN panel to reconsider her requests for additional provision.
33. In December, the SEN panel reconsidered Miss X’s request and declined Miss X’s request.
34. In early February, the Council issued the finalised Plan.
35. Miss X brought her complaint to the Ombudsman.
36. In mid-February, the Council responded to Miss X’s second stage complaint. It accepted it caused the delay in arranging the EOTAS package from when Miss X requested it in December 2023 to April 2024. It said the further delay was caused by Miss X requesting additional provision, and then requesting the Council reconsider its decision not to provide the requested provision. It accepted its delay in issuing the final EHC Plan. It offered Miss X £150 to remedy the delay in its complaints handling.

Analysis

Full time education (part a of the complaint)

37. B’s school agreed to commission alternative online learning prior to October 2023. However, between October 2023 and February 2024, B did not access education. This was because the named school did not provide the robot for distance learning in the meantime. This is an internal school matter and not fault by the Council. I am satisfied the Council considered during this time the named school placement on the EHC Plan was available to B, and offered full time education which met their age, aptitude and needs. I find no fault by the Council.
38. The named school commissioned online learning for B from February 2024 until July 2024. The Council satisfied itself this online education was accredited and suitable for B’s age, aptitude and met their special educational needs. B chose to study one subject only and therefore did not access the full amount of education available during this time. I find no fault by the Council.
39. From July 2024, the Council commissioned B’s online provision as part of their EOTAS package. It satisfied itself the provision was accredited and suitable for B’s age, aptitude and met their special educational needs. B had the option to choose five GCSE subjects to study which equated to a full-time education. B chose to study four subjects. For this reason, I find no fault with the Council.

Decision making timeliness (part c of the complaint)

40. There are no statutory timescales for councils to consider a request for an EOTAS package. The Council accepts there was a delay in its decision-making process in considering Miss X’s request for an EOTAS package. The cause of the delay was in part due to the SEN panel’s decision to refer to a consultant for expert advice. Although this increased its decision-making process by a further two months, I consider its decision to seek expert advice showed good practice and benefitted B. I am satisfied the delay did not cause any loss of educational provision to B.
41. The Council apologised to Miss X for the distress caused by the delay. It also detailed the service improvement actions it has taken to improve its decision-making process, including developing a new policy and introducing an EOTAS coordinator. I consider the Council’s actions have remedied the injustice caused by the delay.

Education Health and Care Plan statutory time frames (part d of the complaint)

42. 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 the council must review and amend the EHC Plan of children due to move to a post-16 institution by 31 March in the calendar year of the transfer. The Council should have reviewed and amended B’s EHC Plan by 31 March 2024. It did not issue its finalised EHC Plan until February 2025. This is an eleven-month delay which is fault. During this time, B had access to online provision and subjects they chose. For this reason, I do not consider the delay a loss of provision. However, it did cause Miss X and B avoidable and unnecessary uncertainty and frustration. The Council apologised to Miss X for the delays.

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Action

43. Within four weeks of my final decision, the Council has agreed to make a payment of £400 to recognise the avoidable and unnecessary uncertainty and frustration caused to Miss X and B caused by its eleven-month delay issuing the finalised EHC Plan. In arriving at this figure, I have considered our guidance on remedies and the individual circumstances in the case. I consider this amount is appropriate and proportionate to the level of injustice.
44. The Council should provide us with evidence it has complied with the above actions.

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Decision

45. 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