Summary: Mrs X complained the Council failed to review Y’s Education, Health and Care Plan within statutory time limits and delayed in obtaining an Educational Psychologist reassessment. Mrs X also complained the Council failed to make appropriate alternative provision available while Y was out of school. Mrs X said this caused her real stress and frustration. We find the Council at fault. The Council has agreed to apologise, make a payment to recognise the injustice caused and act to prevent recurrence.

The complaint

1. Mrs X complains about delays in the process of reviewing her son, Y’s Education, Health and Care (EHC) Plan and reassessing his needs. Mrs X also complains about a lack of alternative provision that was made available to Y while he was out of school. Mrs X says this has caused real stress and frustration and means Y was not receiving the suitable education he was entitled to.

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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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
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 SEND 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(i), as amended)
9. 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

10. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
11. We cannot usually investigate events that took place more than 12 months before a complaint was brought to our attention. Mrs X first contacted the Ombudsman in July 2024, meaning anything that took place before July 2023 has been raised late.
12. The events Mrs X complain about go back to 2020, but I have seen no good reason to exercise discretion to look back as far as that. Y’s EHC Plan was reviewed in May 2023 and the Council has already accepted it was responsible for delays in completing that review. I think it is reasonable for Mrs X to have waited for that process to be completed before complaining to us, and she then did so promptly. For this reason, I have exercised discretion to start my investigation from the point Y’s EHC Plan was reviewed in May 2023.
13. We cannot usually investigate complaints unless we are satisfied the Council has had a chance to look into them first. This includes events that are linked to or ongoing from the complaint that has been brought to us. Mrs X has said she is unhappy with events that have occurred since the Council finished looking into her complaint. However, she would need to raise this with the Council before we could investigate. For this reason, I have taken the Council’s final response to Mrs X’s complaint, of June 2024 as the end point of my investigation.
14. Mrs X has also complained about the content of Y’s EHC Plan, including the named provision and educational setting. Mrs X has the right to appeal the content of Y’s EHC Plan to the SEND Tribunal and it would be reasonable for her to use that right so I have not investigated this element of her complaint.

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How I considered this complaint

15. I spoke to Mrs X about her complaint and considered information she provided. I also considered information received from the Council.
16. Mrs X and the Council 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

Relevant law and policy

17. A child or young person with special educational needs (SEN) 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 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. 
18. 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) 
19. The process for reviewing and amending EHC Plans is set out in legislation and government guidance. Councils must review EHC Plans once a year, and the annual review must take place within 12 months of the date of the previous EHC Plan.
20. Annual reviews are made up of two parts. The first stage is the review meeting, which is usually organised by the child or young person’s school or college on behalf of the Council. Following the meeting, the school or college sends the review paperwork to the Council. The second stage of the annual review is the Council’s decision notice. Within four weeks of the meeting, the Council must tell the child or young person’s parent (or the young person themselves) whether it has decided to maintain, amend or discontinue the EHC Plan. (Section 20(10) Special Educational Needs and Disability Regulations 20154 and SEN Code paragraph 9.176)
21. Where a 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 (an amendment notice, also known as a draft plan) providing details of the proposed amendments, including copies of any evidence to support the proposed changed. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code Paragraph 9.194). It must do so ‘without delay’.
22. Following comments from the child’s parent, or the young person, if the Council decides to continue to make amendments, it must issue the amended EHC Plan as soon as practicable and within eight weeks of the date it sent the existing EHC Plan and amendment notice to the parents. (Section 22(3) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.196)
23. Caselaw has established that when a Council is amending an EHC Plan, it should take no longer than 12 weeks from the date of the annual review meeting to the date it issues the final amended plan.
24. Parents have a right of appeal to the SEND Tribunal if they disagree with the Council’s decision to cease their child or young person’s EHC Plan. Parents can also appeal the special educational provision, or the school named in the EHC Plan. Parents can only appeal the content of an EHC Plan, including the school named, once a Council issues a final plan.
25. 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.
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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
27. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have (Education Act 1996, section 19(6)).
28. 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).
29. 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)
30. 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)
31. 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. We made recommendations that 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.
32. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible and so should retain oversight and control to ensure duties are properly fulfilled.
33. Government guidance on a council’s Section 19 duties recommends councils arrange education for a child from the sixth day of absence when it is clear a child would be away from school for 15 days or more.

What has happened

34. I have summarised below some key events leading to Mrs X’s complaint. While I have considered everything submitted, this is not intended to be a detailed account of what took place.
35. Y has SEN and his education is supported by an EHC Plan. Y’s EHC Plan named School A and provided for specialist staff, differentiated communication and learning activities, a structured learning environment and small group learning. It also provided for Teaching Assistant Time for 32.5 hours per week.
36. As he had not been attending School A, Y was receiving five hours of education through private education providers per week, and going into the school playground up to three times a week to spend time with his peers.
37. On 3 May 2023, the Council held an annual review for Y. Notes from this meeting suggest the package of education Y was receiving was working well. They show Mrs X asked for a similar package to be delivered, with a gradual increase of provision.
38. Mrs X emailed the Council in July 2023 to explain she was still waiting for an amended EHC Plan. Mrs X said she hoped this would include the provision Y was currently receiving and pointed out the Council was failing in its duty to provide Y with a full-time education.
39. The Council responded to explain it had concerns about whether School A could meet Y’s needs. It said a panel would consider Y’s case to decide if it should change the type of provision listed on his EHC Plan. The Council confirmed the provision currently in place would not change as a result, but the panel would consider what type of secondary school would best suit Y’s needs.
40. On 18 July the Council issued a draft EHC Plan and Mrs X provided comments the following day.
41. On 26 July, the Council missed the 12-week deadline to issue a final EHC Plan for Y. It issued an amended draft EHC Plan on 28 July.
42. On 1 September, the Council issued a final EHC Plan, approximately five weeks after the deadline to do so. The EHC Plan still named School A as Y’s educational setting. It provided for staff appropriate for Y’s needs, opportunities to spend time with peers, access to a laptop and keyboard, and a flexible approach to learning.
43. Mrs X told the Council she was unhappy with the EHC Plan as it did not include education other than at a school, but she did not appeal it to the SEND Tribunal.
44. From September 2023, Y’s timetable of alternative provision was increased to 15.5 hours per week as well as two playground visits to the school for socialising. Sessions were delivered by the same private providers Y had already been attending as well as the Council’s Access To Education service.
45. In November 2023 Mrs X told the Council Y was struggling with going to the face-to-face Access To Education sessions. Mrs X asked if someone could come to Y to deliver the provision instead. The Council responded to explain provision was available for Y whenever he was ready for it. The Council also made a referral to another local tutoring service to add additional sessions.
46. The Council held a review of Y’s EHC Plan on 6 December. Notes from this meeting say Y needed a reassessment from an Educational Psychologist (EP) to identify the correct provision for his updated needs.
47. The Council issued a draft amended plan on 22 December.
48. In January 2024, the Access To Education service agreed to provide Y with online sessions. However, Y found these sessions distressing and felt he could not engage with them, so Mrs X asked the Council to consider additional sessions from independent providers to replace these.
49. The Council emailed the private education providers who were already working with Y to ask how his engagement was and if there was scope for increasing the sessions. Two of the providers responded to explain Y was engaging well and they could increase his sessions, one said they did not feel this would be beneficial for Y.
50. On 9 February the Council emailed Mrs X with an updated proposal for provision setting out how Y would build up additional hours over the first three weeks after half term with a view to reviewing this.
51. On 14 February, the Council issued a final amended EHC Plan. This did not name an educational setting, but said Y would move to a special educational placement from September 2024. It mirrored the provision set out in the previous EHC Plan.
52. In March 2024, Mrs X asked the Council to get a new EP assessment for Y. She said the provision in his EHC Plan was no longer suitable and the Council had agreed he needed a reassessment during the review meeting.
53. Mrs X complained to the Council that same day. She said Y had been out of school for four years and there was no evidence he could now access education in a school setting. Mrs X said the Council had assured her Y’s case would be considered at a panel hearing but she had received no update on this. Mrs X said the Council was aware Y’s needs had changed but had not updated his EHC Plan to reflect this and he was currently only able to access seven hours of provision per week, despite repeated requests to increase this.
54. The Council responded to Mrs X’s complaint and apologised if its communication had not been sufficient to that point. The Council said it was currently considering a request for a reassessment by an EP. It said this would be considered at the next available panel meeting and apologised for the delay. The Council said it had worked with Mrs X, School A, and independent suppliers to ensure Y received an education that was suitable for his ability.
55. In April 2024, the Council’s panel agreed to have an EP reassess Y’s needs and provision. The panel also agreed to fund five additional hours of provision per week.
56. The Council then agreed an increase in provision with one of the private education providers and ceased the package of support with the Access To Education service that Y was not accessing.
57. Mrs X wrote to the Council again in May 2024. She said School A had never been able to meet Y’s needs and she had been struggling since 2020 to get him suitable alternative provision. Mrs X said before September 2023, Y had only ever received seven hours of provision per week. She said he currently only received four hours of workable provision per week, despite funding being approved for 11 hours and asked for a timeframe for additional provision to be agreed. Mrs X said the only way Y could access education in the next academic year would be through a package of education outside of a school setting. Mrs X asked the Council to reconsider her complaint.
58. The Council responded to Mrs X’s complaint in June 2024. The Council agreed it had identified elements of Y’s EHC Plan were no longer accurate for his needs in May 2023. It said in July 2023 it had agreed to an alternative education package of 15.5 hours per week for the 2023/24 school year. The Council acknowledged that during the December 2023 review meeting it was clear Y needed a reassessment form an EP but it had failed to take this forward in a timely manner. The Council said it had now agreed to 15.5 hours of alternative provision per week, and it believed this was suitable for Y. The Council said it would consider making symbolic payments to recognise the anxiety and distress caused to Y, the frustration caused by delays, and the time and trouble Mrs X had spent in pursuing her complaint.
59. The Council offered to pay Mrs X:
• £500 to recognise the contribution to any anxiety or distress;
• £300 to acknowledge the frustration caused by the delay in updating Y’s EHC Plan and obtaining an EP reassessment; and
• £150 to recognise the time and trouble taken to pursue the complaint and the delays in responding to calls and emails.
60. Y was assessed by an EP in June 2024, and they provided their report to the Council on 4 July.

Analysis

61. Y’s EHC Plan was reviewed on 3 May 2023. If the Council has completed this process in line with the statutory time limits, the final amended EHC Plan would have been issued by 26 July 2023. The final amended EHC Plan was actually issued on 1 September 2023, around five weeks late. This is fault.
62. The delays caused uncertainty and distress for Y and Mrs X and delayed Mrs X’s right to appeal to the tribunal, which is injustice.
63. Y’s EHC Plan was reviewed again on 6 December 2023 and a final amended plan was issued on 14 February 2024. This is within the statutory time limit, and I do not find the Council at fault here. Mrs X then had the opportunity to appeal to the SEND Tribunal if she was unhappy with its contents.
64. During the December 2023 review meeting, it was noted Y required a new EP assessment. However, the Council had not arranged this until after the end point of my investigation. This is a delay of over five months, which amounts to fault. The delay caused real distress for Mrs X and uncertainty around what educational provision would be suitable for Y, which is injustice.
65. Councils are under a duty to make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise and must put this provision in place without delay. Alternatively, if councils believe children are able to attend school, there are a range of measures they can take to enforce attendance.
66. The initial decision on whether to enforce attendance or on what alternative provision was suitable for Y predates the start point of my investigation, so I have not considered if there was fault in the way the Council made these decisions. However, the Council had a duty to keep Y’s part-time education under review with the view to increasing it if his capacity to learn increased.
67. Throughout the timeline I have looked at, Mrs X pointed out that Y was outside of full-time education and asked the Council to review this. The Council gathered reports from the private education providers to monitor how Y was getting on. However, I can see no evidence it considered increasing the provision available to Y or consulted the education providers about this until February 2024. The Council had multiple opportunities to do this, including at the points it reviewed Y’s EHC Plan and when it received positive reports from the education providers. Not doing do is fault.
68. We cannot know with certainty what education would have been suitable for Y during this time, however, Y and his family have been caused a period of distress and uncertainty regarding whether the Council could have done more to improve his educational outcomes during this period had it acted without these faults.
69. Throughout the timeline I have investigated there were delays in the Council responding to Mrs X’s communications and Mrs X often had to chase the Council for updates and replies. This is poor practice and amounts to fault, which caused further uncertainty for Mrs X, which is injustice.

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Agreed action

70. To remedy the injustice identified above, the Council has agreed to complete the following actions within one month:
• Apologise to Mrs X for the injustice caused by the faults identified above. 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.
• Pay Mrs X £100 to acknowledge the distress, frustration and uncertainty caused by the failure to complete Y’s May 2023 EHC Plan review in line with the statutory timescales;
• Pay Mrs X £150 to acknowledge the additional frustration caused by the Council’s failure to communicate effectively and for the additional time and trouble she was put to in pursuing these matters;
• Pay Mrs X £500 to acknowledge the distress, frustration and uncertainty caused by the delay of around five months in obtaining an EP reassessment for Y;
• Pay Mrs X £1,200 to recognise the impact on Y of failing to consider whether his alternative provision could be increased across approximately two school terms from May 2023 until February 2024. This figure takes into account the mitigation that Y was receiving some provision throughout this time; and
• Remind staff dealing with these cases that where they are aware a child is not attending school, it should consider each individual case and its Section 19 duty in accordance with relevant law and guidance. This includes exploring whether alternative provision can be increased at each opportunity to do so.
71. The Council should provide us with evidence it has complied with the above actions.

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Agreed decision

72. I find the Council at fault for failing to complete Y’s EHC Plan review in line with statutory time limits and for delays in obtaining an EP reassessment. I also find the Council at fault for missing opportunities to consider whether it would be appropriate to increase the alternative provision available to Y and for failing to communicate effectively. The Council has accepted my recommendations and I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman