Summary: The Council delayed issuing Mrs X’s child, Y’s, Education, Health and Care (EHC) Plan. It also failed to consider suitable alternative education and how to secure the provision in Y’s EHC Plan when Y stopped attending school. This resulted in Y missing one term of education and caused Mrs X uncertainty over what provision Y would be entitled to in their amended EHC Plan. The Council has agreed to apologise and make a payment to Mrs X.

The complaint

1. Mrs X complained the Council failed to secure the provision in her child, Y’s, Education, Health and Care (EHC) Plan and failed to consider her request for a personal budget. She says this has caused her and Y uncertainty and distress. She wanted the Council to secure the provision in Y’s EHC Plan, apologise, and compensate her for its failings.

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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 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)
3. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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(1), as amended)
5. 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)
6. 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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How I considered this complaint

7. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
8. Mrs X and the Council have 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

The Law

Education, Health and Care (EHC) Plans

9. 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. 
10. 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)  
11. 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. 

Annual reviews

12. 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) 
13. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
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.

SEND Tribunal

15. 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. There is a right of appeal to the Tribunal against a council’s:

• description of a child or young person’s special educational needs (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; and
• decision not to amend an EHC Plan following a review or reassessment.

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.

Alternative provision

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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
19. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
20. 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)
21. 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)

What happened

22. Following an appeal to the SEND Tribunal the Council issued a final EHC Plan for Mrs X’s child, Y, in December 2023. The Plan named school A, a specialist school, which Y had already been attending for a term. Y’s attendance during this time was around 65% and records note they had settled in well at school A.
23. Y stopped attending school A in February 2024. Mrs X contacted the Council and asked for a review of Y’s EHC Plan. She wanted the Council to consider a package of “education other than at school” (EOTAS).
24. The Council held an interim EHC Plan review on 8 March 2024. At the review Mrs X and an educational psychologist (EP) said they believed Y could not return to school at this time. They proposed an EOTAS package and SEN provision that was significantly different to the provision outlined in Y’s current EHC Plan. School A said it believed the current plan met Y’s needs and they could reintegrate Y into school.
25. At the same time the Council’s EOTAS forum considered a request from Mrs X for an immediate EOTAS package with a local provider of three hours a day for three days a week. The forum refused the package at that time. It said Y had only been at school for one term and it wanted to work with school A to identify an appropriate package to meet Y’s needs.
26. Following the review the Council began developing an amended draft EHC Plan. Y remained out of school during this time. School A provided remote learning and offered a reintegration package which Mrs X refused. School A said it believed it could still reintegrate Y, while Mrs X said she still wanted an EOTAS package. In July 2024 the Council agreed the EOTAS package of 3 hours a day for 3 days per week. It said the package would start in September 2024.
27. Y started to receive the EOTAS package at the local provider in September 2024. The records show Mrs X also requested a personal budget for equipment for Y that she said was needed for the provision in Y’s EHC Plan. The Council refused the request. The Council issued an amended final EHC Plan for Y in November 2024.
28. Mrs X complained to the Council in December 2024. She said the Council had delayed agreeing an EOTAS package and had failed to develop a sufficient package beyond the provision with the local provider. She said the Council had ignored her request for a personal budget and ignored EP and OT advice and she would be forced to appeal to the Tribunal again.
29. The Council responded in January 2025. It said it had continuously made a suitable education available to Y and the contents of Y’s EHC Plan could be appealed to the Tribunal. It said it could find no record of a personal budget request as part of Y’s last EHC Plan review. At the same time Mrs X appealed the EOTAS provision in Y’s EHC Plan to the Tribunal.
30. Mrs X asked the Council to consider her complaint at stage two of its complaint process. She said Y had not received an education or the provision in their EHC Plan while unable to attend school A. She said she had asked for a personal budget during the draft stages of developing Y’s latest EHC Plan. She continued to dispute the content of Y’s EHC Plan and the advice used to develop it.
31. In its stage two response the Council reiterated that it had made suitable education available to Y, that was in line with their age, ability and aptitude. It said Mrs X had appealed against the content of Y’s EHC Plan so it could not consider that aspect of the complaint. It clarified that Mrs X had requested a personal budget for a camera and gym membership which it had refused. It apologised for the error. Mrs X complained to the Ombudsman.

My findings

32. Y stopped attending school in February 2024. The Council responded to this by arranging an immediate interim EHC review to consider the best way forward. This was an appropriate step to take so the Council could consider if School A was “available and accessible” to Y, with or without changes to the special educational provision in the Plan. Following this review the Council decided to amend Y’s EHC Plan. It should have issued the amended EHC Plan within a maximum of 12 weeks of the review. It did not issue the final amended EHC plan for 37 weeks, a delay of 25 weeks (over six weeks). This was fault and caused Mrs X uncertainty over what provision Y would be entitled to in the new Plan.
33. The Council says that between the interim review in March 2024, and the start of EOTAS in September 2024, school A (and the SEN provision they provided) remained available and accessible to Y. It says it was under no duty to provide alternative provision as the remote learning provided by school A was suitable. This was disputed at the review by Mrs X and the EP. Following the review the Council decided to amend Y’s EHC Plan to specify EOTAS provision with the local provider.
34. Given the difference of opinion over what was best for Y, the Council should have done more to consider suitable alternative provision for Y. The Council’s acceptance of the school’s remote learning offer without further consideration of Y’s needs was fault.
35. Y started to receive EOTAS provision with the local provider in September 2024. Had the Council properly considered Y’s alternative provision, this could have been available as alternative provision for Y from the interim review in March. Mrs X complains Y should have received full time alternative provision while out of school. The evidence shows Y was struggling to access their provision and education before they stopped attending school. While the Council failed to properly consider if it needed to arrange alternative provision for Y during this time, on balance I am satisfied Y would have struggled to access it full-time. On balance, the Council’s failure to consider suitable provision resulted in Y missing out on one term of alternative provision at the local provider.
36. The Council formalised the EOTAS provision in the amended EHC Plan issued in November 2024. Mrs X complained the provision in this Plan was not enough and the Council had failed to agree to her request for a personal budget. Mrs X has appealed the November 2024 EHC Plan to the SEND Tribunal. I cannot investigate any matter Mrs X appealed. This includes Mrs X’s view that the provision in the Plan was insufficient for Y. I also cannot consider any matter linked to Mrs X’s appeal, from the date of the November EHC Plan. This includes the Council’s response to Mrs X’s request for a personal budget as this is linked to delivery of the provision being appealed.
37. The Council has explained it is currently reviewing its processes to improve its oversight of section 19 alternative provision. Because the Council is already taking suitable steps, I have not made any service improvement recommendations. We will continue to monitor the Council’s progress through our casework.

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Action

38. Within one month of the final decision the Council has agreed to:
1. Apologise to Mrs X for the delay issuing Y’s amended EHC Plan and its failure to consider alternative provision during this time. 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.
2. Pay Mrs X £900 to recognise the impact of one term’s missed alternative provision on Y.
3. Pay Mrs X £200 to recognise the uncertainty caused by its delay issuing Y’s amended EHC Plan.
39. The Council should provide us with evidence it has complied with the above actions.

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Decision

40. I find fault causing injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman