Summary: Ms X complained the Council failed to provide her child with suitable education and Section F provision from her child’s Education, Health and Care Plan since May 2023. We found fault with the Council delaying review of Ms X’s child Education, Health and Care Plan by 18 weeks outside the statutory timescales. We also found fault with the Council failing to provide suitable education for Ms X’s child and EHC Plan provision from 20 June 2023 to the end of the academic year 2023/2024. The Council agreed to apologise to Ms X, pay her £250 for the frustration and uncertainty caused and £3,300 for her child’s missed education.

The complaint

1. Ms X says her child has been unable to attend school since May 2023. Ms X complained the Council has failed to provide suitable education for her child since this point.
2. Ms X also complained her child’s school failed to provide the Section F provision detailed in her child’s Education, Health and Care Plan.
3. Ms X also complained about an incident at school in October 2022 which has resulted in injury to her child and trauma.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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)
6. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
7. 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)
8. 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.

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What I have and have not investigated

9. I have investigated Ms X complaint about a failure of the Council to provide suitable education and Education, Health and Care Plan provisions for her child since 20 June 2023. I have not made findings on any matters before this date.
10. Ms X brought her complaint to the Ombudsman on 2 July 2024. The Ombudsman cannot investigate matters if a person takes more than 12 months to complain to us about them unless there is a good reason to do so.
11. There is no good reason Ms X could not have brought her complaint about the incident in October 2022 to the Ombudsman sooner.
12. The situation in provision of education for Ms X’s child also changed from 20 June 2023. This was the final date of attendance at school for Ms X’s child. This presents good reason to exercise our discretion to investigate matters from this date as opposed to 2 July 2023.
13. Before 20 June 2023, Ms X, the school and the Council were all actively involved in working to provide a suitable education for Ms X’s child. While Ms X’s child’s attendance was low and part-time support and timetables were in place, all three of these parties were involved in discussions and plans over Ms X’s child’s education. Had Ms X had concerns over the support and provision in place up to 20 June 2023, she could have brought this to the Ombudsman sooner.
14. I have not investigated any matters about the suitability of the education provided after 24 July 2024. The Ombudsman does not investigate complaints when a council has not had an opportunity to investigate such matters. Ms X brought her complaint to us on 2 July 2024, and we agreed to investigate this matter on 18 July 2024. Since we agreed to investigate on 18 July 2024, we would not usually investigate matters after this date. However, the Council produced an amended Final EHC Plan for Ms X’s child on 22 July 2024 and the academic year ended on 24 July 2024. It is suitable to exercise our discretion to use this Final EHC Plan and the end of the academic year as the end date of our investigation. Should Ms X have any concerns about events after 24 July 2024, she would need to complain to the Council first.

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How I considered this complaint

15. I have considered all the information Ms X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
16. Ms X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

What happened

17. On 7 December 2022, the Council produced a Final EHC Plan for Ms X’s child, who I shall refer to as Y. Within Y’s EHC Plan it detailed that Y should attend a mainstream primary school in Section I. The EHC Plan also detailed the Section F provision the Council should provide, this included:
• A range of general support for Y provided by school staff including learning strategies, sensory breaks, providing opportunities to work independently and in groups and an individualised timetable.
• One-to-one support for 15 minutes each day Maths intervention.
• 30 minutes each day Phonic, spelling and word reading intervention delivered by a trained member of staff.
• Daily writing intervention.
• Talk Boost sessions focused on developing attention, listening and vocabulary.
• Lego Therapy sessions delivered by an appropriately trained member of staff.
• 15-minute daily play sessions to engage cooperation with peers.
18. Y was attending a mainstream primary school in the academic year 2022/2023. Y’s attendance at school was sporadic but was supported by the school and the Council through amended timetables and interim SEND support plans. The Council approved a reduced timetable for Y dated 15 May 2023 consisting of 20 hours of education each week.
19. On 26 May 2023, Y’s school completed an urgent annual review of Y’s EHC Plan. Y’s school requested a change of placement for Y because of the difficulties Y was experiencing at this educational setting. Y’s school shared this annual review paperwork with the Council on 8 June 2023.
20. Y’s last day attending school was 20 June 2023.
21. On 28 June 2023, Y’s reduced timetable was reviewed. The Council approved a reduced timetable of 10 hours each week for Y with notes of the school and Ms X stating they believed Y needed an alternative school placement.
22. On 6 July 2023, Y’s school confirmed with the Council that Y was no longer attending school. Y’s school confirmed the part-time timetable had broken down and Y could not attend the reduced hours. Y’s school sought input from the Council about how to move forwards with Y’s education.
23. On 11 July 2023, the Council requested Y’s school explores alternate provision of education for Y.
24. The Council agreed to the change of placement request for Y at a SEND Panel on 2 August 2023.
25. From 14 September 2023, Y’s school started to provide 12 hours of Alternative Provision of education per week for Y funded by the Council.
26. The Council issued an amended Final EHC Plan for Y on 21 December 2023. Within this updated Final EHC Plan the Council detailed that Y should attend a specialist setting in Section I. The Council also maintained much of the same Section F as detailed in the 7 December 2022 EHC Plan. This Section F provision included the 15-minuts of Maths intervention, 30 minutes phonic provision, the daily writing intervention, the Talk Boost sessions, and 15-minutes daily play sessions. The Council changed the Lego Therapy to a daily generic intervention for developing social skills in small groups.
27. On 28 February 2024, the Council approved an increase to Y’s Alternative Provision of education funding from 20 hours each week to 32.5 hours each week. Despite this increase in funding Y continued to receive 12 hours of Alternative Provision of education each week.
28. On 26 April 2024, Y stopped attending the Alternative Provision of education in place since September 2023.
29. Ms X made a formal complaint to the Council on 14 May 2024. Ms X complained about Y’s lack of education and the failure of the Council to provide suitable EHC Plan provision for nearly a year. On 30 May 2024, Ms X provided more details about her complaint including a complaint that the Alternative Provision of education provided since September 2023 was not sufficient for her child’s needs.
30. In June 2024, the Council agreed with Ms X the Alternative Provision of education was no longer suitable for Y and advised it would arrange 1:1 SEND Tuition.
31. The Council issued a Stage 1 complaint response on 28 June 2024. The Council said:
• Following Y’s annual review in May 2023 it received a request for a change in placement for Y. The Council agreed to source a change in place on 2 August 2023.
• It was continuing to look for a suitable educational placement for Y and had been consulting with schools.
• It understood Y was previously attending 12 hours per week Alternative Provision of education and Y’s key worker was exploring alternatives until it could find a suitable school placement.
• It had committed to reviewing Y’s EHC Plan again in line with Ms X’s request.
32. Ms X sought an escalation to Stage 2 of the Council’s complaints process on 2 July 2024. The Council declined escalation to Stage 2 the same date and directed Ms X to the Ombudsman.
33. A further annual review meeting was held for Y’s EHC Plan on 2 July 2024.
34. On 22 July 2024, the Council issued an amended Final EHC Plan for Y.
35. The Council started to provide 1:1 SEND Tuition for Y on 9 September 2024 and found a new school placement for Y on 24 October 2024.

Education, Health and Care Plans

Rules and Regulations

36. An Education, Health and Care Plan (EHC Plan) is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care.
37. Once the Council completes the EHCP it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
38. Councils should ensure an annual review of the child's EHC Plan is carried out within 12 months of the issue of the original plan or the completion of the last annual review. An annual review is completed when a council issues a letter advising of intention to cease, maintain or amend an EHC Plan following an annual review meeting.
39. The purpose of the annual review is to consider whether the special educational support and educational placement is still appropriate. The annual review is not complete until the council has decided to either maintain the Plan, cease the Plan or amend the Plan.
40. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. (s20 (10) Special Educational Needs and Disability Regulations 2014)
41. 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 providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (s22 (1) & (2) Special Educational Needs and Disability Regulations 2014)
42. The Special Educational Needs and Disability Code (the Code) states if a council decides to amend the Plan, it should start the process of amendment “without delay”. (SEN Code para 9.176)
43. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the Final amended EHC Plan as soon as practicable and within eight weeks of the date it sent the EHC Plan and proposed amendments to the parents. (s22 (3) & (4) SEND Regulations 2014)
44. In 2022, the case of R (L, M and P) v Devon County Council said when a local authority proposes to amend an EHC Plan the regulation which requires the Council to notify a parent of its decision within four weeks and the regulation which set outs the process for amending the EHC Plan must be read together. This means the maximum time from the annual review meeting to final plan should be 12 weeks.
45. The Ombudsman can look at any delay in the assessment and creation of an EHCP as well as any failure by the Council to deliver the provision within an EHCP.

Analysis – EHC Plan review delays

46. The Council had 12 months to complete the annual review process following production of the Final EHC Plan on 7 December 2022. Completion of this process would be holding an annual review meeting and deciding whether to maintain, amend or cease Y’s EHC Plan.
47. Y’s school agreed to complete an urgent annual review of Y’s EHC Plan on 26 May 2023. This meant this process started well within the 12 month-timescale for completion. On holding the urgent annual review, the Council had four-weeks to decide whether to amend Y’s EHC Plan. Following the Council’s agreement to amend the EHC Plan, it had 12 weeks from 26 May 2023 to produce the final amended EHC Plan.
48. The school delayed in sending the annual review paperwork to the Council until 8 June 2023. Despite this delay, the Council had time to produce an amended final EHC plan by the 12-week deadline of 18 August 2023.
49. The Council took the change in placement request to panel and had a change of placement approved by 2 August 2023. Again, this still gave the Council time to amend and produce Y’s Final EHC Plan by 18 August 2023.
50. The Council failed to produce an amended final EHC Plan for Y until 21 December 2023. This was 18 weeks outside the statutory timescales. This was fault.
51. This fault would have caused Ms X frustration and uncertainty over the content of Y’s amended final EHC Plan. I have addressed this injustice in paragraph 83
52. The bulk of the provision in Y’s EHC Plan was not changed from the 7 December 2022 EHC Plan to the 21 December 2023 EHC Plan. The Council had also not found a suitable educational placement for Y when it produced the EHC Plan on 21 December 2023. This means the delay outside the statutory timescales did not have any material impact on Y.

Analysis – EHC Plan provision

53. Following finalisation of Y’s EHC Plan on 7 December 2022, the Council had a duty to provide the provision detailed in Y’s EHC Plan. A council can delegate provision of an EHC Plan to other bodies, such as schools. But, a council is ultimately responsible for ensuring the provision detailed in a child’s EHC Plan is delivered.
54. Following Y’s stop in attendance at school on 20 June 2023, the Council was responsible for ensuring that Y continued to receive the provision detailed in their EHC Plan. Some of Y’s Section F EHC Plan was specific to the school placement or generic provision about how best to structure Y’s education. I would not find the Council at fault for failing to ensure this specific provision continued.
55. However, some provision detailed in Y’s EHC Plan was specific about the regularity of its delivery, who by and how long for. I have detailed this specific provision in paragraphs 17 and 26. This provision should have been provided despite Y’s stop in attendance at school.
56. The Council failed to ensure Y received the specific Section F provision detailed in the 7 December 2022 EHC Plan from 20 June 2023 to 20 December 2023. This fault continued from 21 December 2023 to 21 July 2024 for the 21 December 2023 Section F EHC Plan provisions. This was fault.
57. I have addressed the impact of this fault in paragraphs 76 to 82.

Alternative Provision of education

Rules and Regulations

58. 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.
59. 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)
60. 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))
61. 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)
62. 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
63. 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.

64. 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.
65. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when it is clear a child would be away from school for 15 days or more.
66. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

Analysis

67. The Council was aware of Y’s difficulties with accessing education in school before 20 June 2023 and it was actively involved in promoting Y’s access to education through working with the school. As detailed in paragraphs 9 to 13, I have not investigated matters before 20 June 2023.
68. From 20 June 2023, the situation with Y’s access to education changed through Y’s stop in attendance at school.
69. The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness or ‘otherwise’, the Council must intervene and make such arrangements itself. The duty arises after a child has missed fifteen days of education either consecutively or cumulatively.
70. The Ombudsman would only consider a council is responsible for considering its Section 19 duty to provide education when it is made aware of a child’s absence from school. The Council first became aware of Y’s complete absence from school on 6 July 2023. This is when Y’s school confirmed that Y was no longer attending, the previously arranged reduced timetables had broken down and it did not consider it was a suitable placement for Y.
71. The Council decided by 11 July 2023 that Y should access Alternative Provision of education and asked Y’s school to arrange this.
72. Since the Council decided that Y needed Alternative Provision of education, it had a duty to provide education for Y from the sixth day of absence. This meant the Council needed to provide Alternative Provision of education for Y from 14 July 2023. While the Council asked the school to arrange this, it was still ultimately responsible for ensuring that Y was accessing this Alternative Provision of education.
73. The school did not put in place Alternative Provision of education until 14 September 2023. This delay of three school weeks from 14 July 2023 was fault by the Council. This fault resulted in Y receiving no education for these three weeks.
74. When the Alternative Provision of education was put in place for Y this consisted of 12 hours each week of therapeutic provision. The Council considered this provision was suitable for Y because of the challenges Y faced with engaging in education at that time. The Council liaised with the SEND key worker and setting co-ordinator, as well as Y’s school, in deciding that therapeutic only provision was suitable for Y.
75. When a council puts in place Alternative Provision of education for a child, it does not need to provide full-time educational provision. The Council should consider a child’s individual needs and consult relevant professionals about suitable provision for a child. The Council has done this when it put in place Y’s Alternative Provision of education and I do not find fault with deciding 12 hours of therapeutic provision was suitable for Y.
76. While I do not find fault with the Alternative Provision of education put in place on 14 September 2023, the Council should still have given Y opportunity to access their EHC Plan provision. The Council failed to do this which meant Y’s Alternative Provision of education was missing key elements of Y’s educational entitlement.
77. A council has a duty to keep any provision of part-time education under review, this includes a child’s access to Alternative Provision of education. The Council has shown that it kept Y’s Alternative Provision of education under review and agreed to provide extra funding for Y’s education on 28 February 2024. While the Council approved extra funding, it failed to ensure that this translated into additional education for Y. Y continued to receive the same level of Alternative Provision of education before and after 28 February 2024. This was fault.
78. Additionally, the Council has not considered whether it should include more formal subject specific education for Y until 6 June 2024. The Council only did this after Ms X’s request. This was also fault.
79. Y’s final session with the 12 hour per week Alternative Provision of education was on 26 April 2024. The Council failed to provide any Alternative Provision of education until the end of the academic year despite agreeing on 6 June 2024 that it should look to provide more suitable Alternative Provision. This delay in providing any replacement Alternative Provision of education was fault. This meant Y missed a further 11 weeks of education.
80. Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision put in place, a child’s individual needs and whether they are in a key academic year.
81. In total, Y went one full term and two weeks without any education, caused by the fault of the Council, from 20 June 2023 to the end of the academic year 2023/2024. During this time, Y also did not receive any of the EHC Plan provision detailed in their EHC Plan. I consider the Council should pay Ms X £2,000 per term for Y’s missed education during this time considering the individual circumstances for Y and the missed EHC Plan provision.
82. Y also went from 14 September 2023 to 26 April 2024 with only 12 hours of therapeutic Alternative Provision of education. While this was initially suitable for Y’s needs, the Council failed to keep this suitably under review and failed to ensure this provision was increased despite it providing increased funding. Additionally, the Council failed to ensure Y received their formal EHC Plan provision during this time period. I consider the Council should pay Ms X a total of £1,000 for Y’s missed EHC Plan provision and the failure to keep Y’s education under review and increase this accordingly during this time. However, it is notable the Council did provide 12 hours per week Alternative Provision of education which was, initially, considered suitable for Y needs.

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Agreed action

83. Within one month of the Ombudsman’s final decision the Council should:
• Provide Ms X with an apology and a payment of £250 for the uncertainty and frustration caused through its 18 weeks of delay in amending her child’s EHC Plan outside the statutory timescales.
• Provide a payment of £3,300 to Ms X for Y’s missed education, and EHC Plan provision, from 20 June 2023 to the end of the academic year 2023/2024.
84. The Council should provide us with evidence it has complied with the above actions.

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Final decision

85. There was fault leading to injustice. As the Council has agreed to my recommendations, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman