Summary: The Council failed to complete an annual review of an Education, Health and Care Plan on time and failed to provide a right of appeal in 2023. The Council also failed to consider if its duty to provide alternative provision under s.19 Education Act 1996 was engaged when a pupil had to be withdrawn from school. This caused distress and uncertainty whether provision was missed. The Council has agreed to apologise, make a symbolic financial payment and carry out service improvements.

The complaint

1. Ms X complains on behalf of her child, B, that the Council:
• Failed to review B’s Education, Health and Care (EHC) Plan for four years.
• Failed to provide funding to school.
• Failed to review the EHC Plan within legal timescales.
• Hampered B’s access to fulltime education.
• Failed to provide therapy, counselling or support after B was subject to months of sexual abuse by a peer in school.
2. Ms X says because of the alleged fault B fell behind at school and suffered trauma.

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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. 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)
5. 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.
6. 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)
7. 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.
8. 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)

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What I have and have not investigated

9. I have not investigated the lack of mental health support in the EHC Plan. Ms X had appeal rights if she was dissatisfied with a decision not to include counselling or support as special educational provision in the Plan which we would expect her to use.
10. Ms X complained to the Council in January 2024. I have not investigated events prior to 2023. We would expect someone to bring a complaint to the Council’s attention promptly and within twelve months of the events complained of. I have exercised discretion to go back to 2023, although this is more than twelve months before Ms X brought her complaint to the Ombudsman because I am satisfied this was late due to delay in the local complaints process after January 2024.
11. I cannot investigate the actions of the school; schools are not within our jurisdiction.

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How I considered this complaint

12. I considered evidence provided by Ms X and the Council including an independent stage two complaint investigation.
13. I have considered relevant law, policy and guidance.
14. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a 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

16. The Council issued an EHC Plan for B in 2021. It reviewed the Plan in 2022 and decided no changes to the EHC Plan were required and notified Ms X of its decision. Ms X would have had a right of appeal if she disagreed with the Council’s decision.
17. Ms X says B started to struggle at school three months after this review. Ms X says the School asked the Council for additional funding.
18. Ms X did not raise complaints or appeal the decision not to amend the Plan in 2022.
19. In Spring 2023 Ms X says B’s behaviour deteriorated and the Council failed to hold a review of the EHC Plan. In Autumn 2023 an emergency review was held, this was more than twelve months after the 2022 review. Shortly after this Ms X removed B from school as it was identified he was being sexually abused by another pupil and this had been going on for several months, explaining the deterioration in B’s behaviour.
20. The Council has accepted there was delay in holding the review in 2023. It said schools were responsible for holding review meetings, but it should have ensured this happened.
21. Ms X referred to the requests for extra funding in 2022 in her complaint. The Council said B did have funding and provision for high level adult support written into his EHC Plan already. It said the funding provided to the school was sufficient to fund fulltime 1:1 support. It said it was not responsible for lack of safeguarding in school and signposted Ms X how to complain about the actions of the school.
22. At stage two of the complaint, it was upheld that given there had been a significant change of circumstances in Autumn 2023, the EHC Plan should have been updated.
23. B started a new school in December 2023. The Council did not provide alternative education for the period between Ms X withdrawing him from the first school and starting the second school. Ms X says she asked for the 1:1 assistant that had worked with B in school to come to the home to support him, but by the time the Council considered this the member of staff had left. The Council told the complaint investigator at stage two that technically B had a school place available at his previous school ‘but mum did not want to send him in’. The investigator found there was a five-week gap in education, but the Council did not hamper access to fulltime education having arranged a quick move to a new school. The Council also told me Ms X agreed to the school sending work home so B was not without education, however Ms X told me no work was in fact sent home.
24. The Council reviewed the EHC Plan in February 2024. B had settled into his new school and was making good progress. The Council’s decision was to amend the EHC Plan. It issued an amended final Plan in April, within timescales after the review meeting. The Plan was reviewed and amended again in late 2024.
25. The issue of counselling / support for the trauma B had suffered was raised in the late 2024 review. It was noted B would be starting to receive support from child and adolescent mental health services (CAMHS) shortly.
26. In the stage two investigation the Council said Ms X had not asked for counselling or support for B in 2023 and in any event, it would have considered this health provision, not special educational provision, and so for the NHS to provide.
27. Ms X raised concerns B did not receive riding for the disabled lessons. My understanding is this was provision paid for by the school but not included in the EHC Plan. B’s EHC Plan did include social care provision which was delivered by direct payments.

Relevant law and guidance

28. 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. 
29. 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)  
30. 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) 
31. 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.
32. There is a right of appeal to the Tribunal against:

• The 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;
• A decision not to amend an EHC Plan following a review or reassessment.

33. 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.
34. 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)

Analysis

35. I have not investigated events from 2022, including requests for additional funding. This is too long ago. Ms X did not raise complaints or appeal the EHC Plan at the time.
36. I have investigated the Council’s actions from 2023. I cannot investigate the actions of the school.
37. There was delay in holding a review of the EHC Plan in 2023. The Council has accepted it was late holding the review and given the change in B’s presentation it was fault this was not held earlier. Schools are responsible for holding review meetings, but this is just one part of the review process. It was the Council’s responsibility to ensure the EHC Plan was reviewed at least annually. It failed to do so, this was fault. The Council has already accepted and apologised for this.
38. An emergency review meeting was held in September. The Council failed to make a decision after this meeting whether to amend the Plan. This meant Ms X did not get a right of appeal. Ms X wanted B to receive counselling and support for the abuse he suffered at school. This could have been explored with health professionals at the review meeting. If Ms X considered support for mental health was needed for B to access education, Ms X could have asked the Council to consider adding this to the EHC Plan as special educational provision and appealed to the Tribunal if it declined to do so.
39. Ms X did not get an appeal right in Autumn 2023, at a time when she was dissatisfied with the provision B had received. The lack of appeal right was an injustice, but it is speculative whether different provision would have been added to the Plan. When the Plan was updated in April 2024 counselling was not added. Ms X did get a right of appeal in April 2024 which we would have expected her to use if she disagreed with the Plan contents.
40. The Council and complaint stage two investigator found no fault in failing to provide alternative provision when B was between schools. The Council relied on it being Ms X’s decision to remove B and said a place was ‘technically’ still available. I consider this view does not reflect the complete picture. Councils are responsible for providing alternative education when a child cannot attend school due to illness, exclusion or ‘otherwise’ / for other reasons. Abuse and bullying would be reasons it may not be “reasonably practicable” for a child to keep attending.
41. B had been abused by a peer for six months. This is not disputed by the Council. The Council has also made comments criticising the school’s failure to safeguard B. The question for the Council was not whether B was technically still on roll but whether the place at the first school was “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
42. I find that, on the balance of probabilities, if the Council had asked itself the question whether the school place was in practice ‘accessible’ for B, it would have concluded that it was not reasonable for B to return to the school given the circumstances. I find the Council should therefore have considered if its s.19 duty to provide alternative education was engaged. It should also have considered how special educational provision in B’s EHC Plan could be delivered while he was out of school (s,42 Children and Families Act 2014).
43. We would not consider a school sending work home as sufficient to discharge the s.19 duty. Government guidance indicates this should be a last resort where the alternative is no education and where there is a temporary absence, for example due to illness, with the intention the child return to the same school.
44. I acknowledge the period B was without a school place was short, being about five weeks, and it is uncertain whether alternative provision would have been secured within that timeframe. Ms X however has the uncertainty whether support may have been available if the Council had considered the matter at the relevant time. This uncertainty is an injustice.
45. I have not found evidence B missed out on social care provision. I cannot hold the Council responsible for riding lessons the school had chosen to provide but which were not included in the EHC Plan. I can only hold the Council responsible for the provision as stated in the Plan. On the evidence I have seen B did receive direct payments for social care provision which included short break / leisure activities.

Action

Within four weeks of my final decision:

46. The Council will apologise to Ms X for the additional faults I have identified over and above those upheld at stage two (for which Ms X has already received an apology) being:
• Failing to complete the Autumn 2023 review or provide a right of appeal in 2023.
• Failing to consider if its s.19 alternative provision duty was engaged in Autumn 2023.
47. The Council will pay Ms X £500 to acknowledge the impact of the delayed 2023 review, loss of appeal rights and uncertainty whether B missed out on education in Autumn 2023.
48. The Council will ensure officers are aware that s.19 duties can be engaged when a child is ‘otherwise’ unable to attend school. It should ensure s.19 decisions are made at the relevant time, properly recorded, and shared with parents with reasons given for the decision.
49. The Council will provide us with evidence it has complied with the above actions.

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Decision

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

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Investigator's decision on behalf of the Ombudsman