Summary: Mrs X complained the Council has failed to provide her son, Y, with a suitable alternative education or the provision in his Education, Health and Care Plan since February 2023. She also complained the Council did not meet the statutory timescales for reviewing Y’s Education, Health and Care Plan. We found fault by the Council on all matters. The Council agreed to apologise to Mrs X and Y and make a payment in recognition of the injustice caused.

The complaint

1. Mrs X complained the Council has failed to provide her son, Y, with a school place after his school said it could no longer met his needs in February 2023. She also complained the Council failed to provider her son with suitable alternative education while a school place is found or to meet statutory timescales for completing a review of his Education Health and Care plan.
2. Mrs X says her son’s education and mental health have been negatively affected by the Council’s failure to find him a school place or provide alternative education. She also says the family have lost earnings because they need to look after Y and incurred considerable expense in providing educational activities for him. Mrs X states this has caused them distress and negatively affected the mental health of the whole family including her older son.

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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. 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)
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. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
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.
10. 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)
11. 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

12. I have investigated Mrs X’s concerns from February 2023 to April 2024. I decided to exercise discretion to investigate matters from February 2023 despite Mrs X having a right of appeal to the SEND tribunal. This is because the Council’s letter accompanying Y’s the final ECH plan issued in February 2023 said it was aware the school named in his plan was unsuitable and said it would find another him another school. Therefore, I do not consider it was reasonable to expect Mrs X to use her right of appeal.
13. I have not investigated any decisions which included a right of appeal to the SEND Tribunal or any matters which were a consequence of decision which had a right of appeal.

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How I considered this complaint

14. As part of my investigation I have:
• discussed the complaint with Mrs X and considered the details of her complaint;
• made enquiries of the Council and considered its response;
• had regard to the relevant legislation and guidance;
• had regard to our Guidance on Remedies; and
• set out my initial thoughts on the complaint in a draft decision statement and considered Mrs X’s comments in response.

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What I found

Education, Health and Care Plans

15. 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.

16. The EHC Plan is set out in sections which include the special educational provision needed by the child or the young person (Section F) and the name and/or type of educational placement (Section I).

Maintaining the EHC plan

17. 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) .

18. 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: 
19.  

• 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. 

Reviewing EHC plans

20. 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.

21. 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).

22. 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.

Moving to a new phase of education with an EHC plan

23. The council must review and amend an EHC Plan in enough time before to a child or young person moved between key phases of education. This allows planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year in which the child is due to transfer into or between school phases. The key transfer relevant to this complaint is infant school to junior school.

Alternative provision

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. 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. 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
28. 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;

29. 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.

What happened

30. This section sets out the key events in this case and is not intended to be a detailed chronology.
31. Y has a diagnosis of Autism Spectrum Disorder. He also has an extremely high level of anxiety which he needs additional support for.
32. In October 2022 the Council issued Y with a final ECH plan. It named School Q, a mainstream setting, as his placement. The plan provided Y with 25 hours of funded support.
33. In November an emergency review was held for Y because School Q could not meet his needs. The Council acknowledged this and referred his case for consideration by its panel.
34. In January 2023 Y was suspended by School Q. Mrs X decided to remove Y from School Q as it could no longer meet his needs and attending was negatively impacting his social, emotional, and mental health. Mrs X asked the Council to apply to School P, which she said could meet Y’s needs.
35. In February the Council’s panel considered Y’s case. It concluded that Y required a specialist unit within a mainstream school. Mrs X said this was not suitable and asked the Council to reconsider its recommendation.
36. Also, on 15 February the Council completed a key stage transfer EHC plan for Y. The plan named School Q as Y’s placement. The covering letter said it was a generic letter and the Council was consulting with schools to find an appropriate placement for Y.
37. On 28 February the Council began to consult with specialist settings to find a placement for Y. It did not consult School P at this time.
38. In March School Q contacted the Council saying it was concerned about Y’s education. It explained Y was not attending school because he needs specialist provision. The Council replied saying it would arrange a review.
39. Also, in March Mrs X arranged an outdoor placement for Y with1:1 support. The sessions were funded using Y’s EHC plan funding. Y had 15, one and half hour sessions in a six month period.
40. In April the Council held a meeting with Y’s parents and School Q. During the meeting online tuition was offered. Y’s parent’s explained online tuition was not suitable for Y.
41. In May the Council considered Y’s case at its panel again and agreed Y should have a placement in a specialist setting.
42. Also, in May animal therapy sessions were arranged for Y for 50 minutes per week.
43. Between June and August the Council consulted eight settings about a placement for Y but were unsuccessful. Mrs X did not receive updates about the Council’s actions and so was not aware if Y would have placement or not.
44. In July the Council issued Y with a new amened EHC plan. The plan named School Q while a placement in specialist setting is found. The plan set out that Y would receive one appointment with the Occupational Therapy team per term. The Occupational Therapy Service would also provide strategies to manage Y’s sensory needs, handwriting skills, fine motor skills and wellbeing.
45. In September Mrs X made a complaint to the Council as Y was without a school place and without alternative provision.
46. The Council’s response said:
• It did not consult School P until September, but it did not have places available.
• It has consulted education settings for Y, but it has not been able to find a placement for him. It apologised that Y did not have a placement and said it was continuing to consult with settings to find one that can meet his needs.
• It apologised for errors in communications with Mrs X including using the names of other children and contact details for other people. It recognised Mrs X had to wait longer than she should have for responses to her queries.
• Y was offered online tuition, but this was refused without it being trialled.
• Y’s remains on roll at School Q and so it is responsible for providing Y with education including the provision in his EHC plan.

It said it would arrange a meeting with Mrs X to discuss matters. It also offered £200 in recognition of the inconsistent provision of education since February 2023.

47. In October Mrs X found a placement for Y at a local farm.
48. On 10 November the Council held the annual review of Y’s EHC plan. The review noted that gaps in Y’s learning continue to widen while he is not attending school. It decided to update Y’s EHC plan.
49. Also, in November the Council consulted with further settings about a placement for Y.
50. Meanwhile Mrs X escalated her complaint and the Council replied in December. It said:
• Mrs X should have used her appeal rights to the SEND Tribunal if she was unhappy with the contents of the EHC plan issued for Y in February 2023.
• School Q is responsible for providing Y’s educational regardless for whether he attends and they receive the funding for this.
• It has offered online tuition for Y and liaised with the school about provision through another service.
• It has consulted several settings about a placement for Y without success. It recognised it did not follow up on its consultations with some settings yet to reply.

It said it would review the offer made in its earlier complaint response.

51. In January 2024 the Council said that it would offer Mrs X £500 for the inconsistent provision of education for Y since February 2023 and £100 for the frustration caused by the Council’s poor communication. It also apologised.
52. On 23 February 2024 the Council issued Y’s amended draft EHC plan.
53. On 25 April the Council issued Y with a final amended EHC plan.
54. Unhappy with the Council’s actions Mrs X complained to the Ombudsman. She explained Y remained without alternative provision or a placement. She also explained that Y has not received the OT provision in his ECH plan. She had sourced this privately at a cost of £4000.
55. We made enquiries of the Council. In response it reiterated its earlier position.
56. Since our investigation commenced Y was offered a placement at School P starting in September 2024.

Finding

Alternative provision

57. The Council was made aware in February 2023, by both Y’s parents and school Q, that he was not attending. It knew this was because Y’s school could not meet his needs, something acknowledged by his school and in the earlier review meeting held in November 2022. I have seen no evidence the Council considered providing Y with alternative education in line with our recommendations in paragraph 20.
58. The Council says that it offered Y online tuition and so it offered him suitable alternative education. I do not agree. Y’s parents said online tuition would not be suitable for Y because of his autism diagnosis. I have seen no evidence demonstrating how the Council considered online tuition was suitable for his individual circumstances. Furthermore, the online tuition was for four hours per week and so I do not see that it would have amounted to a full-time education in any case.
59. I note Y has received 15 hours of provision at an outdoor learning provider between April 2023 and October 2023 and has received animal therapy for one hour per week since April 2023. However, this does not equate to a full-time education for Y, nor have I seen anything demonstrating why the Council considered this was a suitable education for Y.
60. For the above reasons Y did not receive a suitable alternative education between February 2023 and April 2024. This is fault by the Council. As a result, Y has missed out on education he is entitled to and this has, as recognised in the November annual review of his EHC plan, negatively impacted his learning. It has also caused his family avoidable distress and inconvenience.

Special educational provision

61. The Council issued Y with an EHC plan in October 2022. The plan said School Q would provide the provision in his plan. However, the Council was aware that he was not attending from February 2023 onwards and so it was aware that School Q could not meet Y’s special educational needs. The duty to secure the provision is non-delegable and so the responsibility to ensure this was being provided remained with the Council. The failure to provide the provision in his plan is fault by the Council.
62. I recognise the outdoor learning and animal therapy provision funded by Y’s school helped to meet some of his specialist provision as set out in the annual review documents of November 2023. However, it is clear significant parts of Y’s provision were not meet including the Occupational Therapy provision in his plan. This provision was vital to helping Y to manage his sensory needs and wellbeing, matters that are vital to him achieving his wider goals. Therefore, the failure to provide this provision is significant.
63. I note the Council says School Q received Y’s EHC funding and so it was responsible for providing Y’s specialist provision. I do not agree. The duty to secure the provision remains with the Council despite Y’s school receiving the funding.

Securing a placement for Y

64. The Council’s response to Mrs X’s complaint acknowledged that it did not consult with placements as it should have. I agree. The documents provided by the Council show that it did not act on Mrs X’s request to consult School P until September 2023, by which time the school no longer had space. I note Y has a place at this school for the coming academic year and so, on the balance of probabilities, it would have been a suitable setting for Y when Mrs X initially requested it. It would therefore seem a place would likely have been offered to Y if the Council had consulted it earlier.
65. I also note the Council did not follow up with consulted settings that did not reply to its requests for a placement for Y. It should have done so. Its failure to do so means that Y may have been offered a suitable placement sooner.

EHC plan review

66. The regulations require the Council to review and amend a child’s EHC plan by 15 February for children moving to junior school in the September of that year. The Council sent Y’s EHC plan on 15 February and so it met the statutory deadline.
67. Y was issued with a final EHC plan in October 2022 and so it should have completed its annual review of his plan by October 2023. It did not do so. This is fault.
68. It began the annual review of Y’s EHC plan on 10 November. It should have told Mrs X whether it would maintain, amend of cease Y’s plan within four weeks of the meeting. The Council decided to amend Y’s EHC plan and so it should also have provided a copy of its proposed amendments within four weeks of the meeting. It did not do this until 23 February 2024. It did not issue a final plan until 25 April 2024. The Council did not meet the statutory timescales at any stage of Y’s review and his final plan was issued six months later than it should have been. This is a significant delay. Any delay in issuing a final EHC plan also delays the right to appeal the contents of the plan to SEND tribunal.

Communications

69. The Council’s response to Mrs X acknowledges its communications with her were not of an acceptable standard. This is fault which has caused Mrs X frustration and put her to avoidable time and trouble. This is injustice.

Agreed action

70. Within in one month of my final decision the Council will:
• Apologise to Mrs X and Y for the distress and lack of education caused by the fault I have found; and
• Pay Mrs X £7425, made up of:

1. £6125 for the benefit of Y’s education. This payment is in recognition of the education Y missed out on between February 2023 and April 2024. The payment has been worked out at £1750 per term during this period.
2. £600 to recognise the frustration, distress and uncertainty caused by delays in issuing Y’s EHC plan. The payment has been worked out at £100 for each month the EHC plan was delayed.
3. £200 to recognise the frustration caused to Mrs X in having to pursue this matter.
4. £500 to recognise the distress caused to Mrs X, Y and the rest of their family by the Council’s failure to provide Y with a suitable education.

71. In arriving at the recommended payment, I have had regard to:
• our guidance on remedies which suggests a financial remedy of between £900 to £2400 per term to acknowledge the impact of Y’s lost education provision;
• that Y has received provision at an outdoor learning centre and animal therapy;
• the impact on Y of missing education and provision in his ECH plan;
• the remedy must cover both his missed education and the provision in his EHC plan; and
• the impact Y missing education had on Mrs X and the rest of Y’s family.

72. The Council should provide us with evidence it has complied with the above actions.

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Final decision

73. I have completed my investigation. I have upheld Mrs X’s complaint because I found fault causing injustice. The Council has agreed to apologise and make payment to remedy the injustice caused.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman