Summary: Ms X complained the Council failed to secure J’s special educational provision and delayed issuing a final Education, Health and Care (EHC) Plan. Ms X also said the Council failed to discharge its education duties when J stopped attending school. We have found the Council at fault for the delay in issuing J’s EHC Plan and for parts of its complaint handling. We have made recommendations to remedy the injustice we believe this caused. We have found the Council at fault for not properly recording its decisions about alternative education provision. However, this did not cause an injustice. We have not found the Council at fault for failing to secure the special education provision in J’s EHC Plan. There are parts of Ms X’s complaint we cannot investigate. We explain why in our decision statement.

The complaint

1. Ms X complained the Council:
1. Failed to secure the education and therapy provision set out in J’s EHC Plan.
2. Delayed issuing a final amended EHC Plan following annual review.
3. Failed to provide support or discharge its education duties when J stopped attending school in October 2022.
2. Ms X said these faults caused avoidable frustration, distress and anxiety. She also said this affected J’s educational attainment and wellbeing.
3. Ms X also complained about School Z’s decisions and conduct over a prolonged period.

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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. 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)
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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
8. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
9. 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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What I have and have not investigated

10. Ms X’s complaint concerns matters going back more than 12 months. The restriction set out in paragraph 7 applies. I have not considered any matters prior to January 2022, as I have not identified a good reason Ms X could not have complained about these matters sooner. I have exercised discretion to consider the Council’s actions from January 2022 onwards. This is because the Council’s actions at this point are directly relevant to recent injustice Ms X claims. I decided it was necessary to consider this period to reach a decision.
11. A significant part of Ms X’s complaint concerns the conduct and decisions of staff at School Z. The restriction set out in paragraph 8 applies. The Ombudsman cannot consider a school’s actions or the general conduct of its staff.

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How I considered this complaint

12. I discussed the complaint with Ms X and considered information she provided.
13. I considered information the Council provided about the complaint.
14. Both Ms X and the Council were able to comment on a draft version of this decision. I considered any comments received before making a final decision.
15. 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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Relevant legislation, guidance and policy

Education, Health and Care Plans

16. 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. 
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)

Reviewing EHC Plans

18. 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. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
19. Where the decision is to amend the existing EHC Plan, the Courts have found councils must notify the parent of the decision to amend, and what the proposed changes are, within four weeks of the annual review meeting. The council must then issue any final amended plan within eight weeks of this Amendment Notice. (R, (L, M and P) v Devon County Council). The amended final plan should therefore be issued within 12 weeks of a review meeting.
20. Where councils decide to carry out a full reassessment of an EHC Plan, they must issue the final EHC Plan within 14 weeks of the decision to re-assess.

Appeal rights

21. There is a right of appeal to the Tribunal against:
• a decision not to carry out an EHC needs assessment or reassessment;
• a decision that it is not necessary to issue a EHC Plan following an assessment;
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.

Alternative provision

22. 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.
23. 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)
24. The courts have considered the circumstances where the section 19 duty applies. The section 19 duty does not apply simply because a parent refuses to send a child to the educational provision. 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)
25. 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)
26. We made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision;
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases;
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary; and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

Elective Home Education

27. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. Elective home education is distinct from education provided by a council otherwise than at school (EOTAS), for example when a child is too ill to attend. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.
28. The Council publishes information about elective home education for parents on its website. This says:

“If your child has never been to school, you do not have to do anything before starting home education. If your child is currently registered at a school you will need to notify the school in writing, the school will work with you to complete the relevant forms and will then remove your child from their register and inform the Council.”

Principles of good administrative practice

29. The Ombudsman published the Principles of Good Administrative Practice (the Ombudsman’s Guidance) in 2018. The Guidance sets out the Ombudsman’s benchmark for the standards expected when investigating local authorities’ actions.
30. The Ombudsman’s Guidance stresses the importance of being open and accountable, explaining the reasons for decision making, and keeping proper, suitable records.

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What I found

Summary of key events

31. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “analysis” section of this decision statement.
32. Ms X’s child, referred to in this statement as J, started attending School Z in September 2019. School Z is an independent school that specialises in providing education provision to children with specific SEN needs.
33. The Council issued J’s first EHC Plan in July 2019. The Council issued an amended EHC Plan in August 2021. Section F of J’s EHC Plan sets out the special educational provision in place to meet J’s needs.
34. Ms X said in September 2021, School Z allocated a new teacher to J’s class. Ms X said the teacher was not supportive of J. She said J’s behaviour worsened as a result.
35. In January 2022, School Z held an annual review of J’s EHC Plan, on the Council’s behalf. Ms X said she proposed a change in setting, with her preference being another school, School Y. The Council agreed to consult with several schools, including School Y.
36. The schools replied to the Council’s consultation, stating they could not accommodate J. This included School Y, which told the Council it did not have space available. Ms X told the Ombudsman she believed School Y rejected J based on an out-of-date EHC Plan.
37. In July 2022, the Council issued a draft amended EHC Plan for J. This draft contained some amendments to the provision in Section F. It proposed to continue to name School Z as the setting. I understand Ms X did not comment on the draft EHC Plan. The Council did not issue a final amended EHC Plan.
38. In October 2022, Ms X decided to withdraw J from School Z. Ms X told the Ombudsman she decided to keep J at home to help with medications and a treatment plan. She said this was to minimise any disruption to J’s progress from external influences. She said she also sought to secure an up-to-date EHC Plan and better support from School Z.
39. In November 2022, Ms X said she met with School Z to discuss a phased return for J. The Council said this was in the context of a further annual review meeting. Ms X said she and School Z agreed a phased “return-to-school plan” for J. Ms X said she attended a further meeting with School Z in early December. She said at this meeting, J’s teacher stated they were unwilling to implement the agreed plan. Ms X said she asked for a new teacher, but School Z refused. Ms X said School Z wrote to her following the meeting, asking her to continue with the phased return plan, but Ms X declined because of concerns about J’s teacher.
40. In December 2022, the Council met with Ms X. The Council confirmed J had not returned to School Z. The Council said it told Ms X it believed School Z was suitable and J should continue to attend, while it followed up on the recent meeting. The Council said on the same day, Ms X consulted with another setting, School P.
41. School P told the Council Ms X wanted it named as the setting in J’s EHC Plan. The Council said it would need to follow proper consultation procedures. It began consulting with School P in late December 2022, with negotiations over funding and placement lasting until April 2023. The Council and School P then agreed a start date for J in late April 2023.
42. School P then told the Council J did not attend on the agreed start date. The Council said it spoke with Ms X in early May 2023. The Council said Ms X did not confirm whether she intended to send J to School P. It said Ms X only wanted to discuss the matter through her solicitors, who would contact the Council shortly.
43. In June 2023, Ms X’s solicitor asked the Council to agree a package of education other than at school (EOTAS). This would involve J receiving education provision outside of a school setting. The Council said it held a review of J’s EHC Plan in September 2023.
44. In October 2023, Ms X complained to the Council about a failure to amend J’s EHC Plan. The Council responded in November 2023.
45. Ms X said she provided details of her preferred education providers to the Council in December 2023. The Council refused the proposed arrangements. Ms X said she sought mediation assistance to appeal this decision. The Council later agreed to EOTAS provision in early January 2024.
46. Ms X complained to the Council about School Z. She asked the Council to ensure School Z completed its complaints procedure. She also asked the Council to reimburse expenses she had incurred for J’s education and healthcare since 2022.
47. The Council:
1. said it would follow up with School Z on its complaints procedure.
2. said it had funded J’s place at School Z until April 2023. The Council said by withdrawing J, Ms X had decided to electively home educate him, thereby discharging the Council of its duty to secure an education at the time.
3. said it had secured an alternative setting at School P from April 2023, but Ms X decided not to send J there without telling the Council.
4. said the next contact was from Ms X’s solicitor, seeking an EOTAS package for J. The Council did not agree with this at the time, but this had since been agreed.
48. The Council issued amended draft EHC Plans for J in January 2024. It issued an amended final EHC Plan in February 2024, setting out an EOTAS package for J.

Analysis

Complaint regarding special education provision

49. Paragraph 17 sets out the Council’s duty to secure the special educational provision in Section F of a young person’s EHC Plan.
50. I asked the Council how it satisfied itself School Z secured the provision in Section F of J’s EHC Plan between January 2022, the annual review, and October 2022, when Ms X withdrew J from School Z. The Council told me:
1. Ms X did not raise concerns about School Z failing to secure the provision in Section F at the January 2022 annual review, or at any point after this up to withdrawing J from School Z in October 2022.
2. Ms X raised concerns around J’s class, School Z’s staffing, and J’s general attainment. Because of these concerns, Ms X sought a change in placement, which the Council agreed to consult upon.
51. I have seen record of the correspondence exchanged between the Council and Ms X during this period. These records corroborate the Council’s position. Ms X raised concerns about J’s inconsistent academic progress, noting that J had met some targets in the EHC Plan, while not meeting others. Ms X also raised concerns about updating and adapting the existing provision. I have seen no specific concerns raised about a failure to secure the existing provision.
52. I have not therefore found the Council at fault on this part of Ms X’s complaint.

Complaint regarding delay issuing final amended EHC Plan

53. Paragraphs 18-20 set out the timescales for issuing amended EHC Plans following an annual review. Different timescales apply depending on whether the Council decides to amend the plan, or conduct a full re-assessment of the young person’s needs. In this case, the Council agreed to amend the existing plan, by making changes to the special educational provision and consulting with new settings at Ms X’s request. The Council should therefore have issued the amended EHC Plan within 12 weeks of the annual review meeting. This would have been on or around 21 April 2022.
54. The Council did not issue a draft amended EHC Plan until 25 July 2022. I understand Ms X did not respond to the draft EHC Plan. In the absence of any comments from Ms X, the Council should have issued the final amended EHC Plan, but it did not. I have found the Council at fault for this.
55. The Council’s failure to issue the EHC Plan within statutory timescales meant Ms X did not receive a right of appeal to the SEND Tribunal in early 2022. This is of consequence because, had the Council issued the EHC Plan when it should have, Ms X would have had a mechanism through which to challenge the Council’s decisions about J’s education. This would have allowed her to appeal against the special educational provision in Section F and the Council’s decision to name School Z as the setting. That she could not exercise this right of appeal is an injustice to Ms X, particularly given her clear concerns about School Z.
56. The Council did not issue a final amended EHC Plan until 1 February 2024. This is a delay of around 93 weeks beyond the statutory timescales. The length of time taken to issue the final EHC Plan appears to be due to the Council’s attempts to respond to changing circumstances. The final EHC Plan issued in February 2024 differs considerably from the draft EHC Plan issued in July 2022.
57. I cannot say whether, had the Council issued an amended final plan in April 2022, Ms X would have exercised her right of appeal, or whether exercising this right would have led to a different outcome sooner. It is unclear whether some of the events that followed could have been mitigated, or avoided, if Ms X received her appeal right at the correct time.
58. The length of time and changing circumstances means I cannot say what would have happened, even on a balance of probabilities. This uncertainty is an injustice to Ms X.

Complaint regarding loss of support and education provision

59. Paragraphs 22-26 set out the Council’s duty to provide alternative education provision to a child who cannot attend school because of illness, exclusion, or other reasons. Paragraph 26 sets out the Ombudsman’s recommendation to Councils about how to consider and discharge this duty.
60. I have considered how the Council considered and sought to discharge this duty from when J stopped attending School Z, in October 2022, to when the Council issued a new EHC Plan naming an EOTAS package, in February 2024.
61. I have first considered the period from October 2022 to April 2023. Ms X withdrew J from School Z in October 2022. She then met with School Z in November 2022, agreeing a phased return to the school setting, but Ms X said the plan was impacted by staff disagreeing with it. Ms X said School Z asked her to continue with the phased return plan, but Ms X had concerns about staff conduct and J did not return.
62. I asked the Council when it became aware Ms X had withdrawn J from School Z and how it had considered its section 19 duty. The Council told me it became aware J had stopped attending School Z on 28 November 2022. The Council said it met with Ms X on 14 December 2022 and told her it believed School Z was an appropriate placement for J. The Council said it told Ms X J should continue to attend School Z while it sought alternative placements at Ms X’s request. It began seeking an alternative placement at Ms X’s then-preferred setting, School P, on the same day.
63. The Council told the Ombudsman it believed School Z was suitable for J. It said J’s place at School Z had been funded and available up until April 2023, when it secured a place at School P.
64. The Council needed to decide whether J was receiving suitable education and whether this education was “reasonably available and accessible”. The Council says this was its decision and it communicated this decision to Ms X at the time. However, it has not provided any evidence showing how it made its decision. The Ombudsman’s Guidance says councils should keep proper records, setting out the reasons for decisions. The Council has not clearly done so here. I have found the Council at fault, as it did not record how or why it decided the education available for J at School Z was suitable.
65. However, I do not consider this fault caused J an injustice. On a balance of probabilities, I believe the Council’s decision, recorded properly, would have been the same. This is because there is evidence School Z offered J a phased reintegration to the school setting and had encouraged Ms X to engage with this. The Council was only likely to be able to say education was not accessible if the measures proposed had been tried and failed. Ms X declined because of concerns about staff conduct. I fully recognise Ms X’s concerns, but it is the case a council’s section 19 duty does not apply on the basis a parent refuses to send their child to the educational provision available.
66. The Council said J's place at School Z, an independent specialist school for children with SEN, remained funded and available until April 2023, and it told Ms X this. Given School Z’s offer of a phased reintegration, and the specialised nature of the setting itself, it is likely the Council would have made the same decision. The Council is entitled to decide J could access the education on offer. I have found the Council at fault for how it documented this decision, but I cannot question the Council’s professional judgment.
67. I have considered the period from April 2023 to February 2024. The Council consulted with School P at Ms X’s request. School P is also a specialist school setting for children with SEN. The Council and School P agreed a place for J beginning in April 2023. The Council said Ms X then opted not to send J to School P. When it sought to clarify if J would be attending, the Council said Ms X declined to confirm, pending further contact from her solicitors.
68. Again, the Council became aware J was not attending a school setting in late April 2023. It therefore should have decided if the education on offer to J was “available and accessible” and decide, on this basis, whether it had a duty under section 19 to arrange alternative provision. I have seen no evidence the Council turned its mind to that question. I have found the Council at fault for not considering its duty, and for not recording its decision or its reasons.
69. However, this did not cause J an injustice. This is because, on a balance of probabilities, it is likely the Council would have reached the same decision it reached in December 2022. This is because the Council had again secured a funded place at School P for J from April 2023, a specialist setting Ms X had also initially identified as being suitable for J. I understand this placement remained available for J during the consultations about an EOTAS package. I fully recognise Ms X came to view School P as unsuitable. However, I have seen no evidence Ms X communicated these concerns, or the decision to withdraw J from School P, to the Council. As already noted, the section 19 duty does not apply solely on the basis a parent refuses to send their child to the available setting.
70. The Council later told Ms X she had discharged the Council of its duty to secure an education for J when she withdrew him from School Z. The Council said Ms X had decided to electively home educate J.
71. There was no basis to suggest Ms X made an informed choice to electively home educate J. The evidence available contradicts this assertion, with Ms X first considering a reintegration plan and then seeking alternative settings. Ms X did not withdraw J from the roll at School Z, as set out in paragraph 28. Further, the Council itself continued to consult with education settings, which it would not do if it had decided Ms X had opted to electively home educate J.
72. The Council told me it accepted Ms X had not made an informed choice to electively home educate J at any point. I am satisfied the Council was wrong in its final complaint response. I have found the Council at fault for this.
73. This fault caused Ms X avoidable frustration. It also demonstrated incorrect retrospective justification on the Council’s part. However, I do not consider this fault affected the decisions the Council took at the time.

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Agreed action

74. Within four weeks of the final decision being issued, the Council has agreed to:
1. Provide a written apology to Ms X for the faults and injustice identified in this statement. The Council should have regard to the Ombudsman’s guidance on “Making an effective apology", set out in our Guidance on Remedies document.
2. Pay Ms X £250 in recognition of the avoidable uncertainty and frustration caused by the Council failing to issue J’s EHC Plan within statutory timescales, and by the Council’s incorrect final complaint response.
3. Share a copy of this decision and the Ombudsman’s Focus Report “Out of school, out of sight?” with relevant officers, to emphasise the Council’s Section 19 responsibilities and identify wider points of learning.
75. The Council should provide us with evidence it has complied with the above actions.

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Final decision

76. I have completed my investigation with a finding of fault causing injustice. I have made recommendations to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman