Summary: There was fault by the Council. There was a months delay in finalising an EHC Plan, which the Council has apologised for, to remedy the injustice of distress to the family. The Council also failed to quickly respond to a request to increase the time in education for a child on a part-time timetable. The Council has agreed to apologise and make a symbolic payment to remedy the distress and injustice from the loss of full-time education.

The complaint

1. The complainant, who I shall call Mrs X, complains there was a delay in issuing the final Education, Health and Care (EHC) Plan for her child, Y, and the Council did not meet the statutory timescale.
2. Mrs X says the Council did not provide alternative education for a child who was not attending school and did not ensure that Section F of the EHC Plan was put in place from January 2024 onwards. Mrs X says the delay has caused the family distress and that Y’s academic progress and well-being has been affected.

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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. 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. 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 have and have not investigated

6. A child or young person with special educational needs may have an EHC Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is 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. 
7. 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)
8. 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.
9. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while the Council finalises any changes to the EHC Plan, so long as the council follows the statutory timescales to make those amendments. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
10. I have not investigated the setting or the provision named in the EHC Plans. This is because Mrs X disagreed with this and appealed the SEND tribunal. I have investigated the provision of alternative education and Section F of the EHC Plan by the Council from September 2023 until July 2024.
11. Mrs X complains about the quality Council’s assessment of Y’s needs during the EHC needs assessment. She would like the Council to refund her the cost of the private assessments she had carried out.
12. Where expert fees were incurred before the decision giving an appeal right, this period is not within the jurisdiction of the Tribunal. However, expert evidence (or a lack of it) will often be directly or indirectly a matter of dispute in the appeal. Poor or non-existent reports will mean the council’s decision or the EHC Plan is flawed, and this will be the same injustice a Tribunal is asked to remedy where a parent has appealed Section B and/or F. We cannot investigate where someone has used an alternative legal remedy for the same injustice.
13. The Tribunal has powers to decide what evidence it needs and can consider this as a preliminary issue, and make orders for costs. We cannot trespass on the role of the Tribunal as to what evidence is required. We cannot speculate as to whether a tribunal will accept evidence that has been previously obtained or use it when re-writing the Plan. We cannot consider reimbursement of privately-obtained advice where this is not separable from the matters before the Tribunal.
14. We would also not investigate a request for costs incurred after the appeal right where a parent withdraws the appeal before the hearing. We would expect parents to seek a consent order to finalise the appeal (retaining the ability to ask the Tribunal for costs) then withdraw.

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How I considered this complaint

15. I read the papers put in by Mrs X and her representative.
16. I considered the Council’s comments about the complaint and any supporting documents it provided.
17. Mrs X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

EHC Plan needs assessment

18. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following: 

• The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. The Council should complete steps as soon as practicable. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply);  
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.

19. Y was in mainstream school. The school requested an EHC Plan needs assessment on 14 July 2023.
20. The draft plan was issued on 9 November 2023 and the final EHC Plan was issued on 8 January 2024. There was a delay of one month in issuing the final plan compared to the statutory timescale. This is fault and in order to remedy the injustice the Council has said it will apologise to Mrs X. I have considered whether to propose a symbolic payment for the delay but I do not consider the injustice warrants a payment in this case. The extra time meant the plan was amended to include Mrs X’s comments and two weeks of the period was over the Christmas holidays. This was still delay, as the statutory timescale should be complied with, but I do not consider the delay to be so significant to warrant a symbolic payment. It is unlikely anything would have happened differently for Mrs X and Y if the delay had not occurred.
21. Mrs X appealed the setting and provision in the EHC Plan for September 2024 onwards. Y started at the school named in the EHC Plan by the SEND tribunal in September 2024.

Education from September 2023 until January 2024

22. The school told the Council on 29 September 2023 that Y was attending school on a part time timetable from 18 September until 27 October, every afternoon for 2 hours. The Council said this was on the advice from an Educational Psychologist. The Council said ‘the part time timetable was not processed until it processed the absence notification, sent by school, on 22 December 2023. This notification was processed in February 2024 and as the draft EHC Plan had since been issued, the caseworker was advised for them to respond as appropriate’.
23. The Council consulted the school on the draft EHC Plan on 15 November 2023. The school said they could meet Y’s needs, which would also include some alternative provision. The alternative provision was planned to start in January 2024.
24. 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.
25. 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)
26. 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
27. 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:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

28. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore councils should keep oversight and control to ensure their duties are properly fulfilled.
29. 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. 
30. Schools should tell the local authority of any cases where a child is accessing 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.
31. The school notified the Council of the part-time timetable in September 2023. The Council has apologised for its delay in processing the part-time timetable, as this was not completed until February 2024. This was fault and I have recommended the Council improves its procedures to prevent similar delays in future.
32. During this period, Y was in school for 2 hours a day. Mrs X complains that Y was not receiving a full time education but there is evidence that the school considered this and obtained advice from an Educational Psychologist when deciding not to amend the part time timetable. There is also evidence that this was reviewed in November 2023 and an increase in provision planned. So, as I can see that the part time education was kept under review I do not consider that a remedy for the loss of full time education is appropriate for this period. This is because the Council made this decision after receiving professional advice that full time education was not suitable when the part time education was put in place.

EHC Plan provision from January 2024 onwards

33. 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)  
34. 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 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. 

35. The EHC Plan of 8 January 2024 had ‘mainstream school’ in Section I without naming a specific school. Y remained at his existing primary school. Mrs X appealed the EHC Plan, but this was to appeal the setting named for secondary school in September 2024 rather than the current placement. So, the Council’s provision of Section F of the EHC Plan from January 2024 until July 2024 is within jurisdiction.
36. Mrs X complained that Y was not receiving a full-time education. In March 2024, in response to Mrs X’s official complaint, the Council said that Y was in school every afternoon and some mornings, in addition to a full day at forest school.
37. Mrs X says the school only paid for half a day at forest school, she had to pay for the other half day herself. The Council said in its March 2024 response that it was not made aware that Mrs X was paying for additional hours at the forest school.
38. The file notes show the Council contacted the school on 1 March 2024 to ask what provision was in place for Y. The school said Y was attending in the afternoons and there was forest school provision for one day but Y was struggling. The school asked for an increase in funding on 20 March to support Y’s day at forest school. This was approved on 27 March.
39. The Council received Mrs X’s appeal to the SEND tribunal on 12 March 2024. The Council agreed to her preferred school for September 2024 on that date. Mrs X emailed the Council on 18 March to ask what would happen to the current provision for Y until September as Y’s current school had said they could not meet need.
40. There are notes on the file from April and May 2024 relating to Mrs X’s complaint about Y’s lack of education until September 2024. Notes of a call on 2 May 2024 show that Mrs X told the Council she was funding some of the hours at the forest school to make it a full day and that Y was being sent home from school.
41. Mrs X emailed the Council to ask for the forest school to be increased to 2 days a week and the time in school to be increased to 3 hours per day on 3 May 2024.
42. On 10 May there is a note on file to say the Council agreed to pay back Mrs X the cost of the half day of the forest school. The Council offered another day at forest school but Y did not want to attend on Friday and another alternative provision could not offer a place. The Council has said it has refunded Mrs X £75 towards the cost of the forest school.
43. From January 2024 the Council was aware that Y was attending school and alternative provision on a part time basis. From March 2024 the Council was aware from Mrs X’s comments that she was paying for some of the forest school provision and approved an increase in funding to the school. The Council agreed to pay back Mrs X for the cost of the half day forest school but I am not clear if the full cost from January 2024 onwards has been refunded. I do consider it was fault for the Council not to monitor the educational provision from March 2024, when it became aware that Y could cope with an increase to the hours but the school was not funding this. This was fault and to remedy this fault the Council will refund Mrs X the cost of the provision if it has not already done so from January to July 2024.
44. In addition to the costs of the half day of forest school, I recommend the Council make a symbolic payment of £500 to Mrs X towards her distress and the failure to provide an increase in educational hours (and so the provision in Section F), especially from May 2024. I recognise the Council tried to increase the provision but this did not happen and so was service failure. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith by the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 

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Agreed action

45. Within one month of the date of the decision on this complaint the Council should:
• Apologise to Mrs X. 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 I have recommended in my findings.
• Pay Mrs X £500.
• Refund Mrs X the costs of the half day at forest school from January to July 2024 if it has not already done so.
46. Within two months of the date of the decision on this complaint the Council should:
• Revise its procedures to ensure the education of children on part time tables is monitored effectively and kept under regular review so that education can be increased as soon as a child is ready.
47. The Council should provide us with evidence it has complied with the above actions.

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Final decision

48. I have completed my investigation of this complaint. This complaint is upheld, as there was fault by the Council. The actions outlined above remedy the injustice to Mrs X and Y.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman