Summary: Mrs D complained about the Council’s handling of the Education, Health, and Care Plan process and the education it provided her son (X). We found the Council at fault for failing to adhere to the statutory timescales and to provide X with alternative educational provision he could access and was entitled to from February 2022. The Council will apologise to Mrs D and make payment to remedy the injustice this caused her and X.

The complaint

1. The complainant, whom I shall refer to as Mrs D, complained about the Council’s handling of the Education, Health, and Care (EHC) Plan process for her son (X). She said it caused delay and failed to issue his most recent final amended EHC Plan.
2. Mrs D also said the Council failed to provide her son with enough alternative provision when he was unable to attend his school and communicated poorly with her.
3. As a result, Mrs D said she experienced distress and uncertainty, and X experienced a loss of education.

Back to top

The Ombudsman’s role and powers

4. 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)
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 SEND Tribunal in this decision statement.
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. 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)
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(i), as amended)

Back to top

What I have and have not investigated

9. I have investigated Mrs D’s complaint about the Council’s:
• handling of the EHC Plan process for X from February 2023;
• offer of alternative provision when X was unable to attend his school from February 2022 to the February 2024; and
• communication with Mrs D.
10. I have not investigated Mrs D’s complaint about the Council’s decision about X’s EHC needs assessment in 2021, the education provision he received prior to February 2022, or the process leading up to X final EHC Plan issued in February 2022. This is because these matters were brought to our attention late and carried appeal right to the SEND Tribunal.

Back to top

How I considered this complaint

11. As part of my investigation, I have:
• considered Mrs D’s complaint and the Council’s responses;
• discussed the complaint with Mrs D and considered the information she provided;
• considered the information the Council provided in response to my enquiries; and
• considered the relevant law, guidance and policy to the complaint.
12. Mrs D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
13. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I found

Education, Health, and Care Plans

14. 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.
15. 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)
16. 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.

17. 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 take place. The process is only complete when the council issues a decision about the review.
18. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
19. 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.
20. 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.

Reassessment of EHC Plans

21. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
22. The council can refuse a request for a reassessment if less than six months have passed since a previous EHC needs assessment. It can also refuse a request if it does not think it is necessary, for example because it does not feel a child or young person’s needs have changed significantly.
23. The council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request. If the decision is not to reassess, the council must also provide information about the right to appeal that decision to the tribunal.
24. If the council agrees to an EHC needs reassessment, it has 14 weeks to issue the final EHC Plan from the date it agreed to reassess to the date it issues the final amended EHC Plan.

Appeal rights

25. There is a right of appeal to the Tribunal against:

• a decision not to carry out an EHC needs assessment or reassessment;
• 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;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.

Alternative provision

26. 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.
27. 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)
28. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
29. 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
30. 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: and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

31. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled.

Council policy on school attendance

32. The Council’s Policy sets out the importance of schools in its areas properly monitoring and recording pupils school attendance. It expects schools to record attendance and absence in line with each schools’ own attendance policies. It is up to individual schools to manage pupils’ absences. This includes communication with parents, putting support in place to improve attendance, and issuing penalty notices.
33. Schools can ask the Council’s Educational Inclusion Officer for help, once they have explored all the options available to improve a child’s school attendance, if issues are continuing. Referrals may not be accepted if the Council is not satisfied the school has done everything it can to resolve the attendance issues.

What happened

34. Mrs D’s son (X) has struggled to attend school regularly for several years due to anxiety and learning difficulties. He was placed on a reduced timetable by his school and received support from the Child and Adolescent Mental Health Service (CAMHS) and other services.
35. Following an order by the SEND Tribunal in late 2021 the Council completed an EHC needs assessment for X. It issued his final EHC Plan in February 2022 which set out his special educational needs and listed his existing mainstream school as his educational placement.
36. X did not attend his school placement from February 2022. However, his school made some online provision available to him in summer 2022. Mrs D told the School X could not engage with the online learning.
37. In the 2022/2023 academic year X remained on roll with the school. He attended one day in September 2022, but remained unable to attend. The school recorded the majority of his absence as authorised.
38. In November 2022 the CAMHS service recommended X was unable to attend his school for at least 12 months.
39. X’s school arranged for him to attend three hours per week of off-school activities with an alternative provision provider (Farm School) in Spring 2023.
40. X’s school held an annual review of his EHC Plan in Spring 2023, which Mrs D and the Council attended. The review shows:
• the CAMHS recommendations X could not attend his school for 12 months was considered;
• Mrs D asked for more educational provision for X;
• the Council intended to continue the Farm School provision as this had worked well. It would also look into private 1:1 tutoring for X of one hour of math and English tuition per week. This was to be funded by the School, which could request further funding from the Council;
• a referral for an Educational Psychologist assessment should be made for the assessment to be completed in Summer 2023. X should remain on roll with his school until the assessment was completed; and
• Mrs D could consider requesting Education Other Than At School (EOTAS) which would give her control over a budget for X’s tuition and learning at the Farm School. It intended for this to be in place for the start of the 2023/2024 academic year.
41. The Council shared the outcome of the annual review with Mrs D in June 2023, which was to maintain X’s existing EHC Plan as his special educational needs had not changed.
42. In June 2023 the Council considered X’s school’s request for additional funding for his alternative provision. It told Mrs D the school’s request had been approved.
43. Mrs D asked the Council for X to attend the Farm School six hours per week and for tuition to be put in place. She was unhappy about the length of time this had taken and asked for EOTAS to be put in place.
44. In the final week of the 2022/2023 academic year, X started receiving four hours of math and English tuition.

Mrs D’s complaint

45. Mrs D complained to the Council following the annual review of X’s EHC Plan in 2023. She has continued to raise her concerns about its handling of the review process and the education X received. She said the Council:
• had caused delays in the EHC Plan process for X since the annual review in March 2023;
• had communicated poorly with her; and
• failed to provide X with enough alternative educational provision when he was unable to attend school from February 2022 to the end of October 2023.
46. In response to Mrs D’s initial complaint, the Council told her X was on roll with his school. It apologised for the time it had taken to put provision in place and it had not communicated with her as often as she would have liked. It also explained:
• it was X’s school’s duty to provide him with an education when he was unable to attend. It had provided the school with a list of tuition providers, but the school had been unable to identify one with availability;
• a request had been made for an Educational Psychologist assessment following the annual review, which would help the Council reach a view on Mrs D’s wish for an EOTAS package. There had been some delay, but X had been observed in Summer 2023. Once it received some information from his school it would amend his EHC Plan.
47. Mrs D asked the Ombudsman to consider her complaint shortly before the 2023/2024 academic year started. She said it had taken the Council over two years to get an educational psychologist to assess X and it had not yet finalised his EHC Plan. She remained unhappy about the amount of educational provision X had received and was due to receive.
48. At the start of the 2023/2024 academic year, X’s alternative provision was increased to six hours per week at the Farm school and 8 hours of tuition in math, English and ICT.
49. During the Autumn term, the Council shared draft amended EHC plans for X and Mrs D made comments. It also met with Mrs D. She also made a request for an EOTAS package. An EOTAS package for X was offered to Mrs D In November 2023 which increased the Farm school provision to 12 hours per week and continued the eight hours of tuition.
50. The Council shared a draft plan again with Mrs D, but X’s final amended EHC Plan was first issued by the Council in February 2024.

Analysis and findings

The EHC Plan process

51. The Council issued X’s first EHC Plan in February 2022. The provision and school placement in this plan was appealable to the SEND Tribunal. I cannot therefore consider any dispute Mrs D may have about the contents of the Plan.
52. X’s EHC Plan was due to be reviewed 12 months after it was issued. This should therefore have been completed by February 2023, and the outcome should have been shared with Mrs D by March 2023.
53. The evidence shows X’s school held the annual review meeting in March 2023, which was a month after the review should have been completed. In addition, the Council’s decision to maintain the plan was not issued until June 2023. This was fault as it should have been issued four weeks after the review. I am satisfied Mrs D experienced some distress due to the uncertainty this caused. However, as the Council’s decision was to maintain the Plan, I cannot say this caused X an injustice.
54. The Council’s decision to maintain X’s EHC Plan was appealable to the SEND Tribunal. I cannot therefore consider its decision.
55. The Council agreed during the annual review to request an update from an Educational Psychologist with a view to amend X’s EHC Plan following the advice it received. The school commissioned an assessment, which was received in Summer 2023. The school subsequently requested an early annual review to amend X’s EHC Plan.
56. The annual review took place soon after and led to some increase in the alternative provision X was receiving. The Council also issued draft EHC Plans for Mrs D to comment on in Autumn 2023. While I understand it had tried to work with Mrs D to agree educational provision for X, it was required to issue X’s final amended EHC Plan within 14 weeks of the annual review meeting where it agreed to amend his EHC Plan. Its failure to do so is fault.
57. The Council first finalised X’s amended EHC Plan in February 2024. I am satisfied the Council’s fault caused Mrs D further distress and uncertainty. She also had a significant delay to her right to appeal the contents of the EHC Plan to the SEND Tribunal.
58. However, it appears unlikely X has experienced a significant injustice as a result of the delays. This is because the provision he was receiving, or is going to receive as set out in the draft EHC Plan, is EOTAS provision, which is the same or similar to the alternative provision he should have received.

Alternative provision

59. Mrs D said X has struggled with school attendance for several years. I have considered the Council’s handling of X’s lack of school attendance and the provision he received since February 2022.
60. The Council’s Policy is to delegate the responsibility of providing children who cannot attend school due to illness or otherwise with alternative provision to schools. Schools can request help and further funding to pay for the provision from the Council but are not required to do so.
61. While the Council is entitled to delegate its responsibilities to schools, it remains the Council’s responsibility to ensure X received the education, or alternative provision he was entitled to.
62. The evidence shows X’s school recorded his attendance as primarily authorised since 2022, and he attended some limited out-of-school provision from February 2023. This information was shared with the Council. The CAMHS also confirmed X could not attend school in November 2022.
63. The duty was therefore on the Council, to ensure X received a full-time education or as much education as he could engage with, whether through the school or its own actions. The evidence shows:
• from February 2022 to July 2022, the school arranged online provision to X from Summer 2022. However, Mrs D made it clear very soon after that X could not engage with online provision. I found the Council at fault for failing to provide X with any alternative provision he could access. This was from April 2022 to July 2022 when it should have been aware online provision was not accessible to him.
• from September 2022 to February 2023, X received no alternative provision. This was fault.
• from February 2023 to July 2023, the school arranged X to attend the farm school for three hours per week. This was successful provision, but this did not amount to a full-time education for X. X only started receiving tuition in the final week of the academic year. I found the Council therefore continued to be at fault for failing to provide X with enough alternative provision during this period.
• from September 2023 to October 2023, the Council increased the provision X received with the farm school and his tuition. He received a total of 14 hours of educational provision. I have not found the Council at fault for the amount of alternative provision it provided in this period. While I acknowledge X’s provision further increased following the half-term in November 2023, I found the Council’s staggered increase in provision was a decision it was entitled to make, and the provision was therefore appropriate to what he could engage with at the time.
64. I am therefore satisfied X had a loss of educational provision between February 2022 to July 2023, which also caused him and Mrs D distress and uncertainty.
65. We have recently made service improvement recommendations to the Council on a similar complaint. The Council agreed to reviews its policies and procedures to ensure that in future it can demonstrate it, or anybody acting on its behalf, has considered the individual circumstances of each particular child who may need the Council to make alternative arrangements for their education. The Council should be able to demonstrate how it made decisions, including decisions not to make alternative arrangements for a child’s education. The Council should be able to demonstrate any education offered was both suitable and full-time. If the education is less than full-time, the Council should be able to provide evidence to demonstrate why.
66. The Council has not yet had the opportunity to put our recommendations in place. I have therefore not made further recommendations relating to this fault.

Communication with Mrs D

67. Mrs D also complained about how the Council communicated with her. The Council agreed it could have communicated better with her.
68. I found the Council failed to keep Mrs D updated about the delays in the EHC Plan process and about decisions X’s education provision between February 2022 to September 2023. Following this, the Council met with her and remained in communication until October 2023.
69. I am satisfied the Council’s poor communication and updates to Mrs D caused her some additional distress and uncertainty.

Back to top

Agreed action

70. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice.
71. To remedy the injustice the Council caused to Mrs D and X, the Council should, within one month of the final decision:
1. Apologise in writing to Mrs D and X, and pay her £500 to acknowledge the distress and uncertainty the Council’s faults caused her and X, including the delay in her appeal rights to the SEND Tribunal;
2. pay Mrs D £8,400, to use as she sees fit for X’s benefit, to acknowledge the alternative provision X did not receive, or only partly received, from February 2022 to July 2023. This remedy is based on:
1. from April 2022 to July 2023 (one term) X received no educational provision he could access - £2,400;
2. from September 2022 to February 2023 (one and a half term) X received no educational provision £3,600; and
3. from February 2023 to July 2023 (one and a half term) X only received some limited alternative provision - £2,400.

In total the Council should pay Mrs D £8,900.

72. Within three months of the final decision the Council should also:
1.  
2.  
3. review its policies and procedures to ensure that in future it can demonstrate it, or anybody acting on its behalf, adheres to the statutory timescales for the Education, Health, and Care Plan process. This is to ensure there are no delays in arranging provision or individuals’ rights to appeal to the SEND Tribunal; and
4. remind its staff to respond to and action the concerns it receives from parents, or young people, about issues with educational provision or the Education, Health, and Care Plan process without delay.
73. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

74. There was fault by the Council for causing delays in the EHC Plan process and failing to provide X with an education he could access, which caused Mrs D and X an injustice. The Council has agreed with my recommendations, it is on this basis I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman