Summary: Miss X complained about delays in her son, Y’s, Education, Health and Care Plan annual review process. She also complained the Council did not ensure Y received any education and EHC Plan provision. Miss X said this distressed her and Y missed education and provision. There was fault in the way the Council did not ensure Y received education and plan provision, delayed the annual review process and record keeping was poor. This fault frustrated Ms X’s appeal rights and distressed her. Y missed education and plan provision. The Council has agreed to apologise, make a financial payment, provide guidance to staff and review its policy.

The complaint

1. Miss X complained about delays in her son, Y’s, Education, Health and Care (EHC) Plan annual review process. She also complained the Council did not ensure Y received any education and EHC Plan provision. Miss X said this distressed her and Y missed education and provision.

Back to top

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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with a Council’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)
4. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

Back to top

How I considered this complaint

5. I read Miss X’s complaint and spoke to her about it on the phone.
6. I considered information provided by Miss X and the Council.
7. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Background information

EHC Plans

8. 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. 
9. 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)  
10. 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 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. 

11. 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.
12. 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) 
13. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
14. 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.
15. 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 EHCP as soon as practicable and within eight weeks of the date it sent the EHCP and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
16. There is a right of appeal to the Tribunal against:

• 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; and,
• a decision not to amend an EHC Plan following a review or reassessment.

17. 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)
18. 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.
19. 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 any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.

Alternative provision

20. 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.
21. 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)
22. 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)
23. 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

Attendance

24. The Education Act 1996 places a duty on parents to ensure their children of compulsory school age, receive a suitable full-time education. Failure to meet this duty is an offence. Councils have the power to prosecute parents who fail to ensure their child’s regular attendance at school. If the court finds a parent guilty of an offence they can receive a fine or imprisonment of up to three months.
25. The legislations states that before prosecuting parents, the council must consider whether they should apply to the court for an Education Supervision Order (ESO). An ESO is placed on the child and the council is appointed by the court to supervise that child’s education, either at school, or at home for a specified period.
26. Where a child’s attendance at school drops below a certain level, it is likely a council’s Education Welfare Officer (EWO) will become involved after a referral from the school. EWOs have various responsibilities. These are typically a mix of providing advice and support to schools, parents and children, while also leading a council’s investigation and enforcement of the law around school attendance.
27. Section 436 of the Education Act 1996 (‘the Act’) requires councils to identify children not receiving an education.  

What happened

28. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
29. Y has additional needs. He was on roll with a local school. The Council started to note a drop in attendance in early 2023.
30. The school held an annual review meeting in May 2023. The review noted some changes.
31. The Council continued to liaise with the school about Y’s attendance and education. The Council asked the school to consider a referral to its inclusion service.
32. Y did not return to school in September 2023.
33. The Council sent the letter following the May 2023 review at the end of October 2023. The letter confirmed the Council would maintain the EHC Plan.
34. The school held another review meeting at the end of October 2023. The Council has not provided any notes from this meeting.
35. The Council noted in January 2024 it asked the school to refer to the inclusion service about attendance again. Miss X complained to the Council about the lack of suitable education, delays in the EHC annual review process and poor communication.
36. The Council responded to the complaint at the start of February 2024. The Council accepted the delays in sending the decision after the March 2023 annual review. The Council accepted communication was poor. The response stated the Council had no evidence the October 2023 review meeting happened.
37. The Council issued Y’s draft EHC Plan in February 2024.
38. The Council provided an updated stage one response at the end of February 2024. The Council accepted one of its officers attended the October 2023 meeting but did not have any paperwork. The Council said as school did not refer to its inclusion service. The response said the school was trying to reintegrate Y and asked for more time.
39. Miss X asked the Council to escalate her complaint to stage two at the end of February 2024.
40. The Council continued to note Y’s poor attendance. It issued an updated final EHC Plan at the end of March 2024.
41. The Council provided its stage two response in April 2024. The response said the stage one response was detailed. The Council stated the delay in issuing its decision following the March 2023 meeting delayed Miss X’s appeal rights. The response said it was not possible to assess what education Y missed and recommended it would consider a financial payment for this. The Council agreed it did not adhere to the annual review timescales. The Council recommended considering a payment to acknowledge the frustration and uncertainty the review delays caused.
42. At the end of April 2024, the Council offered Miss X £500. This was to acknowledge the frustration and uncertainty the review delays caused. Miss X accepted this offer.
43. Miss X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Miss X would like the Council to ensure Y receives education and for this not to happen again.
44. In response to my enquiries the Council stated the school was responsible for providing education and plan provision. The Council confirmed it was aware Y was not attending school. The Council advised an officer had left, and it could not provide evidence of their communication.

My findings

Annual review process following May 2023 meeting

45. The Council decided it would maintain the plan following this meeting. It should have issued its decision within four weeks of the meeting, in June 2023. It did not issue its decision until the end of October 2023. The Council accepted this delay was fault. This fault frustrated Miss X’s appeal rights to the SEND Tribunal.
46. The Council held another review on the day it sent this letter. It is suitable Miss X did not use this right of appeal.

Annual review process following October 2023 meeting

47. The Council decided to amend the plan following this meeting. The Council should have written to Miss X, confirming this decision and setting out the amendments, by the start of December 2023. I have not seen this letter. This is fault.
48. The Council should have then completed the amendments, given Miss X an opportunity to comment and issued the final plan within a further eight weeks. It did not issue this plan until March 2024, a two-month delay. The Council accepted this delay was fault. This frustrated Miss X’s right of appeal to the SEND Tribunal.
49. The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the required timeframes here amounts to fault. 
50. The Council accepted fault in both annual review proceedings and made a remedy payment of £500. This is suitable remedy to acknowledge the injustice caused by this fault.

Education and EHC Plan provision

51. The Council is responsible for ensuring Y received education and the provision named in his EHC Plan. The Council said the school was responsible for this. The Council can ask another organisation to meet this need, but the Council remained responsible.
52. I have seen no evidence of an assessment to say Y was receiving a suitable education or any explanation why he did not receive education and provision. The Council should document its decision making. This is fault.
53. The Council has not ensured Y received education or the provision in the plan. It has not provided an assessment to say why he could not receive this. This is fault. Y missed education and plan provision.
54. The Councils stage two response recommended a consideration for a payment for this missed provision. It has not provided any payment for the missed education and provision. This is further evidence of the Councils fault.
55. The case law, mentioned in paragraph 17, sets out the Ombudsman cannot consider matters after the right of appeal to the SEND Tribunal. Therefore, I can only recommend a remedy until Miss X’s appeal right to the SEND Tribunal, March 2024, two academic terms.

Attendance

56. The Council said the school should have referred to its inclusion service to consider Y’s attendance. The Council argues this is the reason Y did not receive suitable education.
57. The Council was aware of Y’s low attendance. It kept asking the school to complete a referral. The Council should have used its discretion and judgement, and not wait for a referral. Without this, I am not satisfied this is a suitable reason Y missed education and provision. This is fault. Miss X has not suffered any injustice from this fault.

Record keeping

58. The Council stated an officer left so it could not provide communication. The Council is required to document its actions. This evidences poor record keeping. This is fault.
59. The Council noted at first it was unaware the October 2023 annual review happened. It later stated this meeting was not in question. However, the Council has not provided evidence of this meeting. There are no minutes, no officer notes and no summary. The Ombudsman expects a Council to document its actions. It has not done this. This is fault.

Back to top

Agreed action

60. To remedy the outstanding injustice caused to Miss X and Y by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Miss X and Y for the fault identified in this investigation. This apology should be in accordance with the Ombudsman’s new guidance Making an effective apology.
• Pay Miss X £2,400 for not ensuring Y received education and EHC Plan provision for two academic terms. This money should be used for Y’s benefit.
• Remind staff of the importance of effective record keeping.
• Remind relevant staff of the Councils duties when completing the EHC Plan annual review process.
• Review the attendance policy to ensure officers are aware of the importance of assessing individual cases and using professional judgement where appropriate.
61. The Council should provide evidence of the actions taken to satisfy the recommendations.

Back to top

Final decision

62. I have completed my investigation. I have found fault by the Council, which caused injustice to Miss X and Y.

Investigator’s final decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman