Summary: Mrs X complained the Council delayed in re-assessing her child D’s Education, Health, and Care needs, and failed to ensure D received a suitable education and special educational needs support. There was fault by the Council which caused D to miss education and special educational needs support. This also caused avoidable distress for D, and avoidable distress, time, and trouble for Mrs X. The Council agreed to pay a financial remedy, and ensure suitable education and special educational needs support is in place for D without delay. It will also review its complaint handling processes and issue reminders to staff who handle complaints.

The complaint

1. Mrs X complains the Council failed to provide suitable alternative education and Special Educational Needs (SEN) support for her child D, after they stopped attending school in 2020. Mrs X says the Council failed to:
• ensure D received a suitable alternative education while out of school from October 2020;
• ensure D received the SEN provision in their Education, Health, and Care (EHC) Plan from 2020;
• complete an annual review of D’s EHC Plan for three years after it last issued a final Plan in 2020. There were annual review meetings in 2021 and 2022 but the Council did not properly follow up on these or issue an amended plan;
• secure a new educational placement for D after it agreed their school placement was not suitable in 2021; and
• communicate with Mrs X properly about these issues, respond to her queries and complaints in good time, or complete actions it agreed to when it upheld her complaint.
2. Because of this Mrs X says:
• D missed over three years of education and SEN support. They became isolated and experienced significant anxiety; and
• Mrs X experienced distress which compounded her difficulties as someone with a mental health condition, who has other children with SEN. She had to leave her full-time employment to stay at home with D.
3. Mrs X wants the Council to be held accountable for its actions and provide a financial remedy to recognise the education and SEN support D missed.

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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. 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)
6. 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.
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(i), as amended)

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How I considered this complaint

8. I considered:
• information provided by Mrs X and discussed the complaint with her;
• documentation and comments from the Council;
• relevant law and guidance; and
• the Ombudsman’s Guidance on Jurisdiction and Guidance on Remedies.
9. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
10. 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

Legislation and statutory guidance

Education, Health, and Care (EHC) Plans

11. A child or young person with special educational needs (SEN) may have an Education, Health, and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them.
12. 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)  

EHC Plan reviews

13. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC reviews and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.
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 take place. The process is only complete when the council issues a decision about the review.
15. 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) 
16. 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.
17. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent 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.
18. The Council must then issue any final amended EHC Plan within eight weeks of the notice of proposed amendments. (R(L, M and P) v Devon County Council [2022]). Therefore, it must issue a final Plan within twelve weeks of the review meeting.

EHC Plan reassessments

19. 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.
20. 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

21. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the SEND Tribunal in this decision statement.
22. There is a right of appeal to the SEND Tribunal against the:
• decision not to amend an EHC Plan following a review or reassessment; and
• in a final EHC Plan, the description of the child’s SEN, the SEN provision specified, the school or placement specified, or the fact that no school or placement is specified.

Alternative education while out of school

23. 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.
24. 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)
25. 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)
26. 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))
27. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
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’)

Background

29. Mrs X’s child, D, has special educational needs (SEN). They have had an EHC Plan for several years.
30. In September 2020, D started secondary school in a mainstream educational placement. In late 2020, they stopped attending school due to anxiety. During year 7, D’s school was sometimes closed due to COVID-19, and the school offered online learning and a part-time timetable for D. In May 2021, following an EHC Plan annual review meeting, the Council told Mrs X it had decided not to amend D’s EHC Plan, or the school named in the Plan. It told her she could appeal this decision to the SEND Tribunal. Mrs X did not appeal.
31. During the 2021/2022 school year, D should have been in year 8, but did not attend school at all. The school held an annual review meeting in June 2022 which the Council attended. At this meeting it was confirmed D had not accessed online learning made available by the school. It was agreed the school was not suitable for D and could not meet their needs. The Council said it would amend D’s EHC Plan and consult other schools to be named in the Plan.
32. In September 2022, D should have started year 9, and was still out of school. By the end of the school year, the Council had not updated D’s EHC Plan, found an alternative educational placement, or arranged any education for D while they were out of school. Mrs X complained to the Council.
33. The Council responded to Mrs X’s complaint a month later in August 2023. It accepted it was at fault and said it would:
• carry out a reassessment of D’s EHC needs to update their Plan, including arranging fresh assessments by an Educational Psychologist and Occupational Therapist; and
• work with Mrs X to understand the best route for D to receive a suitable education. It said this could be through finding a new educational placement, or arranging EOTAS (Education Otherwise Than At School). Councils have the power to arrange education and SEN provision to be delivered otherwise than at a school or institution (EOTAS), where it would be inappropriate for a child to attend a school setting. (Children and Families Act 2014 Section 61).
34. In September 2023, D should have started year 10. In October 2023, after Mrs X escalated her complaint to Stage 2 of the Council’s complaints procedure, it arranged two hours a day of home tutoring for D.
35. In November 2023, the Council had not completed its promised complaint outcomes. The Council had not updated D’s EHC Plan, or decided about a school placement or EOTAS package. Mrs X had approached the Ombudsman and we had been chasing this on her behalf. The Council issued a response at Stage 2 of its complaints procedure, apologised for its fault again, and provided an update on the actions it was taking. Mrs X was not satisfied with the Council’s final response, so we began our investigation.
36. In May 2024, when the Council responded to our enquiries, it had not completed its reassessment of D’s EHC needs it began in July 2023, or issued an amended EHC Plan. D was still out of school with two hours per day of tutoring, and no SEN support in place. Mrs X had told the Council she thought an EOTAS package was the best long-term solution for D, as they would now struggle to return to an educational setting.

My findings

Time period investigated

37. The law says we cannot investigate events which happened more than 12 months before somebody complained to us, unless we decide there are good reasons to. Mrs X brought this complaint to the Ombudsman in July 2023, so we would usually only look at what happened after July 2022. Mrs X complained about the Council’s actions from 2020 onwards.
38. I am satisfied Mrs X could have complained to the Council about events before the June 2022 annual review meeting earlier. There are no good reasons to investigate those earlier events now. Therefore, I have only considered events from the point of the June 2022 annual review meeting.

EHC Plan review and reassessment

39. We can look at delays in the EHC Plan review process. We expect councils to follow statutory timescales set out in the Regulations and Code. We are likely to find fault where there are significant breaches of those timescales.
40. The Council decided at the June 2022 review meeting it should amend D’s EHC Plan and find a new school placement. It should have taken the necessary steps to ensure it could issue a final amended Plan, naming a new school placement, within twelve weeks of the meeting. It failed to meet the statutory timescales, which was fault. Over a year later, it had made no progress in amending the Plan, or finding a new school placement, and Mrs X had to make a complaint.
41. When responding to Mrs X’s complaint in July 2023, the Council accepted fault in that it had failed to update the Plan. It said it had decided it needed to carry out a reassessment of D’s EHC needs to issue an amended Plan. In line with the Regulations and the Code, it should have issued a final amended Plan within 14 weeks of its decision to re-assess, by late-November 2023. When the Council responded to our enquiries in May 2024, ten months after its decision to reassess D’s needs, it still had not issued a final amended EHC Plan. This delay was fault. I accept Mrs X told the Council in January 2024 she did not want it to issue a final amended Plan until it received Occupational Therapy advice it was waiting for to inform the content. However:
• following its July 2023 decision to reassess, the Council took three months to make a referral for an Educational Psychologist assessment, and six months to make a referral for an Occupational Therapy (OT) assessment. This was too long, given the deadline to issue a final Plan was November 2023. The Council only made the referral to an OT after the deadline for a final Plan had passed; and
• the Council has a duty to meet statutory timescales and so any failure to do so is fault. Families may only appeal to the SEND Tribunal about the content of a final Plan, so any delay in issuing a final Plan frustrates a family’s right to appeal.
42. I considered whether the delays in identifying a school placement, and finalising an amended EHC Plan, caused D and/or Mrs X an injustice. I decided the delays caused them distress and frustration, for which the Council should provide a remedy. This distress includes the fact the delay frustrated Mrs X’s right to appeal to the SEND Tribunal about the final Plan.
43. I also considered whether the delays in the EHC Plan review meant D lost out on added special educational provision, which they may have received if the Council had finalised the amended Plan sooner. I consider there remains uncertainty for D and Mrs X about this. It may be an amended Plan would include significantly more SEN provision; I cannot say, even on the balance of probabilities, because the Council has still not issued an amended Plan. The uncertainty that remains about this causes D and Mrs X distress, for which the Council should provide a remedy.

Alternative education and delivery of EHC Plan

44. The Council attended the June 2022 review meeting. It was discussed D had been out of school since 2020, when they were in year 7, and had been unable to engage with online learning made available by their school. The Council also agreed at this meeting D’s school placement was not suitable for them. Therefore, it is clear the Council considered D did not have education which was reasonably practicable for them to access. Therefore, the Council should have immediately considered its duty to arrange suitable alternative education under section 19 of The Education Act 1996. It failed to properly consider this, which was fault.
45. Had the Council properly considered its section 19 duties, I consider suitable alternative education should have been in place for D from September 2022, the start of year 9. The Council accepted it delayed in arranging alternative education for D. No educational provision was in place until October 2023, in year 10, when D started to receive two hours per day of tutoring at home. This delay in arranging provision, was fault.
46. There was also not enough evidence the Council properly considered:
• whether the provision was suitable for D’s age, ability, aptitude, and SEN. D received none of the support from their latest EHC Plan; and
• the number of hours of provision D should receive, and whether this was equivalent to a full-time education, or in line with what D could cope with at the time.
47. The Council’s failure to properly consider what alternative education D should receive, was fault. The Council’s failure to ensure D received the SEN provision set out in their latest EHC Plan during this time, was further fault.
48. The Council should remedy the injustice caused to D by any loss of education from September 2022 to July 2024, i.e., years 9 and 10. This is six terms of education.
49. As set out in our guidance on remedies:
• where we find fault has resulted in loss of educational provision, we usually recommend a payment of £900 to £2,400 a term to recognise the impact of that loss; and
• in addition to educational provision, we recommend additional remedies for loss of SEN support such as Occupational Therapy, or sessions with a Clinical Psychologist. The level of financial remedy for this is likely to be lower than that for loss of educational provision. We consider the level of provision missed and the impact of this on the child.
50. In deciding a suitable financial payment to recognise the education and SEN support D missed, I considered the following.
• As set out in our guidance on remedies, we do not consider years 9 and 10 to be one of the most significant periods in a child’s school career, as we would for say the first year of secondary school, or a public exam year.
• For all of year 9, D received no education or SEN support at all.
• In year 10, D received two hours per day of tutoring from October 2023. However, as I have already explained, I am not satisfied the Council properly considered the suitability of this provision. Also, D still received no SEN support.
• D’s 30 July 2020 EHC Plan was in place, but was not delivered, during both years 9 and 10. However, the support set out in the plan was mostly in-class support around teaching and communication styles, rather than direct one-to-one interventions, or additional therapies from a professional therapist.
• On the balance of probabilities, I do not consider it likely D would have been able to engage with full-time equivalent education during this time, had it been available to them.
51. Based on these factors, I decided the Council should provide a remedy of:
• £2,000 per term for the 3 terms of education and SEN support D missed in year 9;
• £1,800 per term for the 3 terms of education and SEN support D missed in year 10; and
• as explained at paragraph 43, further financial remedy to recognise the uncertainty that remains for D and Mrs X about what additional SEN support D may have missed because their EHC Plan was out of date.

Complaint handling

52. The Council was at fault in how it handled Mrs X’s complaint, as follows.
• The Council’s complaints procedure says it will issue its final response to a complaint within 40 working days. In Mrs X’s case, it should have responded by mid-September 2023. It did not issue its final response until mid-November 2023, after chasing by the Ombudsman. This delay was fault.
• Although the Council upheld the complaint and said it would resolve the issues, it failed to deliver the outcomes it promised, even after Mrs X came to the Ombudsman. This was fault.
53. The Council’s failure to handle Mrs X’s complaint properly caused her further distress, and avoidable time and trouble. The Council should remedy the injustice caused.

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Agreed action

54. Within one month of our final decision the Council will:
1. properly consider what alternative education it should arrange for D, while no school placement or EOTAS arrangement is in place. It will consider and record its decisions about what provision, including the number of hours, will be suitable for D’s age, ability, aptitude, and SEN. It will then arrange this without delay;
2. ensure the SEN provision set out in D’s latest EHC Plan is fully in place, as far as possible outside a school setting;
3. issue a final amended EHC Plan for D without delay, so the family can appeal to the SEND Tribunal if they wish to do so; and
4. pay the family a total of £12,800, comprising of:
1. £11,400 to recognise the education and SEN support D missed. This is intended for D’s future educational benefit;
2. £800 to recognise the avoidable distress caused to Mrs X by the Council’s failings;
3. £500 to recognise the avoidable distress to D; and
4. £100 to recognise the avoidable time and trouble Mrs X spent pursuing her complaint.
55. Based on the faults identified in this case, I would usually propose recommendations for the Council to improve its services to ensure it meets:
• statutory timescales for EHC Plan reviews and reassessments; and
• its section 19 duties to ensure suitable alternative education is in place for a child out of school.
56. However, the Council has recently agreed to recommendations we have made in these areas for other cases we have investigated, as follows.
• EHC Plan delays. Following case 22014118, in October 2023, the Council provided us with evidence about how it was planning to improve compliance with EHC Plan statutory timescales. In March and then May 2024, the Council agreed to further recommendations about EHC Plan timescales for cases 23008172 and 23005766, which identified fault during the same period as Mrs X’s case. We are still corresponding with the Council about completion of these recent recommendations. Therefore, I do not consider it appropriate to make further recommendations about the same faults now.
• Alternative education. In February and March 2024, the Council provided evidence it had complied with our recommendations for cases 22016105 and 22017245, about meeting its section 19 duties to provide alternative education. For these cases we identified fault during the same period as Mrs X’s case. The recommendations the Council completed still need time to take effect, so I do not consider it appropriate to make further recommendations about the same faults now.
57. Within three months of our final decision the Council will review its complaint handling processes, and issue reminders to staff who handle complaints, to ensure it:
• responds to complaints within the timescales set out in its complaints procedure; and
• properly completes any actions it agrees to when it upholds a complaint, in good time.
58. The Council will provide us with evidence it has complied with the above actions.

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Final decision

59. I have completed my investigation. There was fault by the Council which caused D to miss education and SEN support. This also caused avoidable distress for D, and avoidable distress, time, and trouble for Mrs X. The Council agreed to our recommendations to remedy this injustice. It will also review its complaint handling processes and issue reminders to staff who handle complaints.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman