Summary: Miss X complained about how the Council reviewed and amended her child, W’s, Education, Health and Care Plan, about how it found a new school for W and how it provided W with education in the meantime. The Council was at fault. This caused Miss X significant frustration and upset and meant W missed out on education and special educational provision for a year. To remedy their injustice, the Council will apologise to Miss X, pay her a total of £4900, issue a staff reminder and review the information it gives to staff on amending Education, Health and Care Plans.

The complaint

1. Miss X complained about how the Council reviewed and amended her child, W’s, Education, Health and Care (EHC) Plan, about how it sought a new placement for W and about how it provided alternative provision for W while it consulted with schools.
2. Miss X said this meant W missed out on education, social interaction and development which led to worsening mental health and increased vulnerability. She said the Council’s actions also caused her significant stress and upset.

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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. 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)
5. 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)
6. 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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How I considered this complaint

7. I have considered:
• all the information Miss X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the relevant law and guidance and the Ombudsman's guidance on remedies.
8. Miss 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 guidance

Education, Health and Care Plans

9. 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 including: 

• section F: The special educational provision needed by the child or the young person; and
• section I: The name and/or type of educational placement 

10. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. 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 2014 and SEN Code paragraph 9.176)
11. 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) 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). It must do so ‘without delay’.
12. If the council thinks the child or young person should change schools, they should consult with potential settings, sharing the child or young person’s draft amended Plan.
13. Following comments from the child’s parent or the young person and consultations, 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) SEND Regulations 2014 and SEN Code paragraph 9.196)
14. Caselaw has established that when councils are amending an EHC Plan, they should take no longer than 12 weeks from the date of the annual review meeting to the date it issues the final amended Plan.

Special educational provision

15. 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)  
16. 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. 

Alternative provision

17. 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.
18. 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)
19. The courts have found that when deciding if a child is out of education for ‘other’ reasons, councils should consider whether the education offered is reasonably possible or reasonably practical to be accessed by the child.
20. 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
21. 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.

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

22. This section sets out the key events in this case and is not intended to be a detailed chronology. I have investigated the period between January 2023 and February 2024.
23. Prior to the events I have investigated, W was on roll at a mainstream secondary school (school A) but struggled attending and staying in school. W could find managing their emotions difficult and exhibited dangerous behaviour as a result. This resulted in multiple suspensions.
24. In September 2022, when W was in year 9, the Council issued W’s first draft EHC Plan and began consulting with schools. One school which Miss X preferred, school B, said it could not offer W a place because W needed 1:1 or 2:1 support when violent, which it could not offer without affecting existing pupils.
25. Because of W’s difficulties being in school, school A arranged for them to attend an alternative provision service (provider C) for two days per week. Provider C was applying to be a registered independent special school at that time.
26. In November 2022, the Council issued an EHC Plan for W which named school A. Council records show it named school A with the intention of moving W to provider C once it was an independent school.
27. The special educational provision in the plan included:
• daily help with social interactions;
• weekly sessions for 30 minutes focused on helping W develop strategies to maintain and understand social interactions and relationships;
• twice weekly 20-minute sessions focused on developing W’s language skills;
• 25 minute small-group sessions, five times per week, dedicated to helping W with literacy and numeracy;
• three 20-minute sessions per week of 1:1 support on reading and writing; and
• teaching W strategies to manage their anxiety and emotions.
28. In December 2022, the Council consulted with school B again. School B responded to say again that W’s violent behaviour would impact on other pupils because it could not provide 1:1 or 2:1 support when W was in crisis. It added that W was academically below their peers and so would not be able to access the curriculum available at school B.
29. In late January 2023, Miss X asked the Council to hold an early annual review because W was being suspended every week for the three days they were due to attend. The Council held an early review at the end of the month. A record of the review meeting notes:
• W’s attendance at school was poor. In the school year so far, W’s attendance was 49% and they had been suspended four times. Three of the suspensions had been since the start of the spring term;
• as a result, W was academically far below their peers;
• W enjoyed attending provider C;
• the Council agreed to consult with schools for W to move to;
• school A agreed to discuss strategies to help W reintegrate back into school after being suspended or after school holidays; and
• school A also agreed to arrange a breakfast box to help W settle at the start of the school day.
30. Miss X says that in the 2022/2023 spring term W stopped attending for a couple of weeks and the rest of the time and throughout the summer term, W was suspended repeatedly. Miss X was in contact with the Council throughout these terms and noted W was not receiving a full-time education.
31. In February 2023, provider C registered as an independent special school for children and young people of compulsory school age and a college for those who receive post-16 education, starting from September 2023.
32. In late February, Miss X asked W’s case worker to consult with provider C so it could be named in W’s EHC Plan. The Council issued the consultation request in April. The consultation wrongly referred to provider C’s post-16 provision.
33. Provider C responded to the consultation to say it could not accept W into its college because they were not over 16. W’s case worker told Miss X this.
34. Miss X spoke to provider C which said its school had not received a consultation from the Council. It confirmed it had space for W. Miss X asked the Council to consult with provider C again.
35. In July 2023, the Council sent a new consultation. Provider C confirmed it had a space for W to attend full-time but could only hold the space until 1 September.
36. W did not return to school A in the 2023/2024 autumn term, which was the start of year 10.
37. On 5 September, a decision-making panel considered whether W should attend provider C full time. Information provided to the panel noted only that provider B had said W needed 1:1 or 2:1 when in crisis, which it could not deliver without affecting other pupils. The panel decided that before the Council would approve provider C, it should consult school B again. It said that because school B was maintained by the local authority, it would need to know why school B could not meet W’s needs. The Council told Miss X of the panel’s decision in early September.
38. Around the same time, the Council agreed to consider funding an extra day per week at provider C.
39. The Council issued W’s draft amended EHC Plan in mid-October 2023. Miss X asked the Council to name provider C.
40. School A responded to the draft EHC Plan to express frustration at the delay arranging a new school place for W. It said “W is no longer attending [school A] and this will not change. As such [W] is only getting two days of education from [provider C]. It noted W needed specialist provision and it was on offer from provider C. School A said even an extra day at provider C per week was insufficient.
41. In early November 2023, the Council’s social care service said W’s absence from school on days they did not attend provider C was putting them at moderate risk of exploitation. Social care asked the education service to get W into full time education as soon as possible.
42. In response, W’s case worker asked the Council to fund five days per week at provider C. A second decision-making panel heard the request in early November but delayed making a decision until early December. In December, the Council decided W should enrol at provider C full time.
43. W began attending provider C full time in January 2024 and the Council issued W’s amended final EHC Plan in early March 2024.

Communication

44. W’s case worker left the education service in May 2023. In its response to a complaint from Miss X, the Council accepted Miss X had struggled to get a response from it until August 2023.

Findings

45. When a parent has a right of appeal to the SEND Tribunal, the Ombudsman would not normally investigate the matter that could have been appealed or any closely linked matters, where it was reasonable for the parent to appeal. Miss X had a right of appeal to the Tribunal when the Council issued W’s EHC Plan naming school A in November 2022.
46. However, I am satisfied it was not reasonable for Miss X to have appealed. The Council named school A on the understanding it would issue a new Plan naming provider C when it registered to be an independent school, continued to consult with placements in December 2022 and agreed to do more consultations in January 2023. Miss X had good reason to believe the Council was considering changing the placement in W’s EHC Plan so there was no reason for her to have appealed.

Alternative provision

47. The Council has a duty to arrange alternative provision if a child in its area is not receiving a suitable education due to illness or other reasons. This duty applies even when a child is on a school’s roll. Caselaw has clarified ‘other’ covers circumstances where it is not reasonably possible or practical for the child to access the education. The Council failed to apply this test to W’s case correctly which meant it was at fault in how it decided W was receiving a suitable full-time education. I come to this conclusion for the following reasons.
• It would not automatically be fault for a council to rely on a school to take steps to make the education on offer reasonably possible or practical for the child to access, even when some alternative provision is already in place. However, we would expect the council to have suitable oversight of those steps and be ready to act if they were not successful. At the January 2023 annual review meeting, school A agreed to arrange a breakfast box for W and discuss strategies to help W reintegrate after periods out of school. There is no evidence the Council contacted school A to explore if those steps had been successful or what other actions the school could take instead.
• The Council was aware W’s attendance in the summer and spring term of the 2022/2023 school year was poor because W was repeatedly suspended for the period they were meant to be at school A each week. It is hard to see how education at school A was reasonably possible or practical when W was frequently not allowed on campus. Despite this, there is no evidence the Council considered whether to arrange extra alternative provision for W, at another provider or provider C at that time.
• Around the start of the 2023/2024 autumn term, the Council agreed to consider funding another day per week at provider C. This indicates it accepted school A may not be providing a suitable full-time education for W. However, it is not clear why the Council was only considering one additional day given W was not attending school A at all by that point and the Council was not working with the school to introduce new strategies to help W reintegrate.
• School A was clear in mid-October 2023 that W was not in school, would not return to school and that even three days at provider C would be inadequate. School A was evidently of the view that education on its premises was not reasonably practical or possible for W. There is no evidence the Council considered, at that time, whether that information suggested W needed more alternative provision.
• Despite hearing children’s social care significant concerns in early November that W was at risk of exploitation while out of school, the Council did not arrange any further alternative provision. Instead, it focused on finding W a new school place which was ready for the start of the new year.
48. Overall, it appears that throughout the period I have investigated the Council prioritised finding W a new school place over properly considering if it should arrange alternative provision. However, I cannot say, even on balance, that had the Council properly considered whether to arrange more alternative provision in the spring and summer 2022/2023 school terms, it would have done so. The Council could have reasonably decided to work more closely with school A to try different strategies to help W attend and stay in school. The fault therefore caused Miss X significant upset and uncertainty.
49. However, given the Council was considering a further day per week at provider C in the autumn 2023/2024 school term and given the information from children’s social care and school A, I am satisfied that but for the fault, the Council would have arranged more provision between September and December 2023. Given W has been able to attend provider C full-time since January 2024, I am satisfied they would have been able to access any such alternative provision fully. They missed out on one term of alternative provision.

Special educational provision

50. The Council owes W the duty to secure the special educational provision in their EHC Plan. W attended provider C two days per week between January 2023 and January 2024. I am satisfied that on those days, W received the provision in their EHC Plan. However, W was barely able to attend school A in the spring and summer terms of the 2022/2023 school year and did not attend at all in the autumn 2023/2024 term. This means that for three days per week between January 2023 and January 2024, W was not receiving the special educational provision in their Plan. This was fault which negatively impacted on W and caused Miss X avoidable upset and stress.

School consultations

51. The Council decided to seek a new school placement for W in January 2023. Miss X asked it to consult with provider C, her preferred placement, in February 2023. The Council wrongly issued a consultation to provider C’s post-16 college. This was fault and meant the Council told Miss X provider C had refused to offer W a space when it actually had room.
52. After Miss X asked the Council to reconsult provider C, it heard the school could hold a space for W until 1 September. Despite this, and the urgency of finding W a new school place ready for the start of year 10, the Council did not hold a decision-making panel until after the deadline. This delay was fault.
53. The Council was also at fault in how the September decision-making panel considered W’s case. The panel was not aware school B had said it could not deliver W’s curriculum because of their lower academic achievement relative to their peers. In addition, the panel decided the Council should re-consult school B because it needed to know why school B could not meet W’s needs. School B had already explained it could not deliver the 1:1 or 2:1 support W needed when they were in crisis and became violent. There is no evidence the panel considered that information before deciding the Council should reconsult.
54. The Council’s second decision-making panel heard in early November that W was at risk of exploitation while not attending school full-time and their case worker requested the panel approve provider C five days per week. The panel did not make its decision for another month and there is no apparent reason for the delay. This was fault.
55. The faults in this section caused Miss X significant frustration, upset and uncertainty about whether the Council could have named provider C in W’s EHC Plan earlier.

EHC Plan amendment

56. When a council decides to amend a child or young person’s EHC Plan, it must do so within twelve weeks of the annual review meeting. For W, this would have been by mid-May 2023. The Council did not issue the final Plan until early March 2024. This was a delay of almost ten months and was fault. Without a final Plan, Miss X had no way of appealing to the SEND Tribunal to have provider C named.
57. The current wait time for a SEND Tribunal hearing is around 12 months, although it can be shorter for a child out of school and at key stages in their education, as W was. The wait times mean it is possible that had Miss X been able to appeal in May 2023, she may not have had any appeal outcome before the date the Council issued the final EHC Plan in March 2024. Regardless of this, Miss X was deprived of her legal right to appeal which caused her significant frustration. In addition, while the Council ultimately named the school Miss X wanted, had it named a different school, Miss X would have been very delayed in appealing that decision. I am concerned other parents in the Council’s area may be affected by a similar fault so have made a recommendation to prevent the fault occurring again.

Communication

58. The Council has accepted its communication with Miss X was poor between May and August 2023. I agree with that conclusion and conclude it amounts to fault. The communication issues compounded Miss X’s frustration and upset.

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Agreed action

59. Within one month of the date of my final decision, the Council will take the following actions.
1. Apologise to Miss X for the avoidable upset, frustration, uncertainty and stress she felt due to the faults identified in this decision and for the impact of the lost education and special educational provision on W. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended in my findings.
2. Pay Miss X £300 in recognition of her injustice.
3. Where the Ombudsman finds a child has not had alternative provision or special educational provision where they should have, we usually recommend a payment of between £900 and £2400 per term. I have considered W’s age, the fact that they received some education from provider C, the provision in W’s EHC plan and W’s ability to cope with full-time education. In total, the Council should pay £4600 to recognise W’s loss education and special educational provision between January 2023 and January 2024.
4. Emphasise to staff that they must consider whether the Council should arrange alternative provision for a child, even when it is trying to find a new school place for that child. The duty is not automatically discharged by the Council providing standard or exceptional funding to schools for a child’s education.
60. Within three months of the date of my final decision, the Council will review the information it gives to staff about amending EHC Plans and naming new school settings in them. The Council should ensure the information is clear that it is required to finalise amended EHC Plans within the statutory timescales and that efforts to find a child a new school place are not valid reasons for delay. It should emphasise the impact of not meeting the statutory timescales, as set out in paragraph 57 of this decision. If the Council identifies changes it should make, it will send the Ombudsman an action plan setting out how and when it will make those amendments.
61. The Council will provide us with evidence it has complied with the above actions.

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Final decision

62. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman