Summary: Ms D complained about the Council’s handling of the Education, Health and Care plan process for her son (X) and its delay in finding him a suitable special school. The Council agreed it was at fault for failing to adhere to the statutory process and causing unnecessary delays in finding a school placement. We also found it failed to put in place alternative provision for X for nearly a year. The Council should apologise and make payment to Ms X to acknowledge the impact its faults had on her and X.

The complaint

1. The complainant, Ms D complained about the Council’s:
• handling of her son’s (X) education since September 2023 when she asked it to find her son a special school to provide his education; and
• delays in, and handling of, X’s Education, Health and Care (EHC) plan process.
2. Ms D said, as a result, X was home educated for longer than he should have been, and he did not receive all the special educational needs support he was entitled to. She said this also caused her frustration, uncertainty and she had time and effort to support X.

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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 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)
5. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
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)

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What I have and have not investigated

8. I have considered Ms D’s complaint about the Council’s handling of X’s education and the EHC plan process since September 2023 until its final complaint response in September 2024.
9. I have not considered any concerns Ms D may have about X’s education and breakdown of a school placement prior to September 2023. This is because these matters are late or was not part of her complaint to the Council.

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How I considered this complaint

10. I considered evidence provided by Ms D and Council as well as relevant law, policy and guidance.
11. Ms D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
12. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

Relevant law and guidance

Education, Health and care (EHC) plans

13. 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.
14. The EHC Plan is set out in sections which include:
• Section B: Special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and/or type of educational placement
15. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.
16. The 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)
17. 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.
18. 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.
19. 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)
20. 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)
21. 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)
22. 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)

Elective home education

23. The Education Act 1996 gives parents the right to home educate their children. This is referred to as elective home education. When such arrangement is agreed, the parent becomes responsible for the child’s education. This includes special educational needs provision set out in an EHC plan.
24. Councils continue to have a responsibility to ensure the education is suitable to a child and to take appropriate action if it finds this is no longer the case. Once this happens the council again becomes responsible for ensuring the provision in a child’s EHC plan is made available.

Alternative provision

25. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
26. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
27. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
28. 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)

What happened

29. Ms D’s son, X, has been diagnosed with health conditions which impacts his ability to receive his education. He has and EHC plan which sets out his special educational needs and the support he should receive.
30. In 2022 X’s EHC plan listed a mainstream school which he was attending. However, by summer 2023 Ms D felt the placement had broken down as X was not being supported enough in school and the placement was not suitable for his needs. An annual review was held, and Ms D decided to electively home educate X. She said this would be for a short period as she believed X should be in a special school.
31. In September 2023 Ms D asked the Council to find X a special school and shared her parental preference. Six weeks later, the Council’s panel agreed X needed a special school.
32. The Council consulted with Ms D’s preferred school, which found it was not suitable for X and the Council accepted its reasons. The Council subsequently consulted with a different special school which was unsuccessful for the similar reasons. It also considered a third school, but Ms D did not agree this school would be appropriate for X due to personal reasons.
33. In November 2023 the Council issued X’s final amended EHC plan following the annual review. This listed elective home education in Section I.
34. Ms D complained to the Council. She said it had:
• not followed the statutory EHC plan process following the annual review and it had finalised X’s EHC plan late; and
• failed to find, and do enough to find, X a suitable special school; and
• it was wrong to continue to suggest the school she did not believe was suitable for X due to personal reasons and to suggest mainstream schools as an option.
35. In response the Council explained its reasons why no special school placement had been found and offered to meet her to discuss her concerns.
36. The Council and Ms D met in late 2023. It was agreed the Council would seek assessment and input from professionals, including from an educational psychologist. It also agreed to consider options X could access whilst in elective home education. Ms D again said she made it clear she did not want to continue to educate X at home.
37. In January 2024 the Council suggested two mainstream schools, which Ms D did not agree with. Ms D asked the Council to consider Education Other Than at School (EOTAS), but the Council said it needed to explore all other options before it could agree to this. An alternative provision provider was discussed but the Council said X could not attend this as he had not been permanently excluded.
38. A further review of X EHC plan took place in January 2024. It was agreed the Council would consult specialist schools in a wider area. Ms D subsequently said she believed X needed assessments by an educational psychologist, Occupational psychologist and a speech and language therapist. She again said she did not wish to continue to home educate X.
39. Ms D again complained to the Council in March 2024, as X was still not receiving an education in a special school and the EHC plan process was ongoing.
40. Soon after, X was assessed by an educational psychologist.
41. In May 2024 the Council issued a draft EHC plan for X, which continued to list elective home education in Section I.
42. In June 2024 the Council issued its final amended EHC plan for X, which did not list a school. However, Section I set out X needed a special school.
43. In Summer 2024, the Council consulted with 14 schools in and out of its area. During this time Ms D again asked the Council for EOTAS. The Council’s panel again considered X’s case but said it cannot agree EOTAS until it had fully exhausted all school consultations.
44. Ms D asked the Council to consider her complaint about its handling of X’s EHC plan process and delays, and its failure to find X a special school placement he could access under its stage two complaint process.
45. In September 2024 the Council provided its final response to Ms D. It apologised for the experiences Ms D had in the EHC plan process and the impact this had had on her. It accepted it had not adhered to the statutory timescales for the process and its responses had not been coordinated. It explained:
• a new Head of Special Educational Needs & Disability (SEND) was in place and had commenced a review of its systems and processes to improve this;
• the challenges it had to find X a special school placement;
• it had discussed EOTAS with Ms D for potential alternative provision and a tutor, but it was completing the school consultations first; and
• it would arrange a meeting with Ms X to finalising X’s EHC plan with the placement he needed.
46. Shortly after the school placement for X was agreed. X’s final amended EHC plan was issued in October 2024 which listed the special school. X started in the school a few days later.
47. Ms D asked the Ombudsman to consider her complaint as she feels the Council has not properly acknowledged the impact its failures had on X and herself.
48. In response to our enquiries the Council accepts it caused delays in the EHC plan process for X and to find him a suitable school placement. It proposed a remedy to acknowledge the impact this had.

Analysis and findings

The EHC plan process

49. The Council has accepted it caused delays in the EHC plan process for X. I agree the Council was at fault for causing the delays and failing to adhere to the statutory process. I found:
• this was from summer 2023 when the annual review took place until November 2023 when a final amended EHC plan was issued. This amounted to a 13-week delay, although I note part of the delay was due to Ms D’s changed view regarding elective home education. She also did not receive the relevant paperwork before the annual review, a decision whether to maintain or amend the plan, and the draft amended EHC plan for her comments; and
• from early 2024 when it agreed to reassess X and amend his EHC plan until June 2024 when the final amended EHC plan was issued.
50. I also note the November 2023 EHC plan carried appeal rights. However, it wrongly set out elective home education, which was not what Ms D had agreed to at the time. She had been consistently clear since September 2023 she wanted X to have a school placement and elective home education should end. She did not appeal the plan, and the Council agreed to amend it soon after. I therefore found the EHC plan delay continued from the annual review in June 2023 until June 2024 when X final amended EHC plan listing a special school type was issued.
51. I accept the Council’s new Head of SEN has put in place changes to its procedures to ensure the Council adheres to the statutory process and timescales. I have therefore not made any service improvement on this point.

Consultations with schools

52. I acknowledge the Council consulted with Ms D’s preferred school in Autumn 2023 and a second special school. However, it also continued to suggest mainstream schools. This was not appropriate considering its panel had agreed a special school was needed. The Council accepted this was fault.
53. The evidence shows it did not consult with any special schools again until Summer 2024 when it made wider consultations for special schools. While this may be acceptable during the period in which it was supporting Ms D with obtaining further assessments of X, including an educational psychologist assessment. It is clear the delays in that process caused significant delays in its consultations with schools. This was fault.

X’s education

54. Ms D decided to home educate X in Summer 2023. However, she told the Council on several occasions from September 2023 onwards that she did not want to continue this, as she wanted X to have a school place in a special school.
55. Once she shared this with the Council, she was no longer electively home educating X. The Council’s panel agreed a special school placement was needed. The Council should subsequently have amended X’s EHC plan accordingly whilst consulting with schools. Its failure, or delay to do so, was fault.
56. The Council has accepted it should have done so and had put in place new procedures to ensure this is actioned sooner. I have therefore not made any service improvement recommendations on this point.
57. Ms D also asked the Council for EOTAS in early 2024. This was because of the impact home educating X had on her and her view X was not receiving all the provision he should at home.
58. I acknowledge the Council was working with Ms D and reassessments of his needs were taking place. I also accept EOTAS should not be put in place until suitable school’s had been consulted with.
59. However, I found the Council had an alternative provision duty to provide X with an education and his special educational needs provision as set out in his EHC plan from October 2023. This was one month after Ms D informed the Council she wanted a special school place for X and its panel had accepted he needed a special school placement.
60. I found it should have considered and offered Ms D to put in place alternative provision without delay until a special school placement started. This was likely to be suitable tutoring for X in combination some further support to meet X’s needs to his social, emotional and mental health needs as set out in his EHC plan, or an alternative provision placement which could offer this.
61. I acknowledge the Council met with Ms D in late 2023 where she brought some options to the Council’s attention, but this did not lead to any alternative provision. She also repeatedly told the Council she did not want to home educate X, and she was struggling with this due to her family circumstances. I am therefore not satisfied the Council did enough to ensure X’s needs were considered, and no further offers of special educational needs provision were made until he started his school placement in October 2024. This was therefore fault.

Injustice

62. The Council apologised to Ms D for its delays and handling of the EHC plan process. It has also since proposed a remedy to acknowledge the injustice its faults caused.
63. I am not satisfied the Council’s proposed apology and remedy are enough to acknowledge the impact its faults caused. I found Ms D experienced:
• distress and uncertainty as a result of the Council’s delays and failure to adhered to the statutory EHC plan process and timescales.
• frustrations due to the delay to exercise her appeal rights to the SEND Tribunal; and
• unnecessary time and effort to home educate X for nearly one year when the Council should have found a school placement or have put appropriate alternative provision in place.
64. I also found the Council caused X an injustice. Ms D continued to provide X with some education, despite not agreeing to this and with increasing difficulty, which mitigated the impact X experienced. However, she could not provide all the educational support as set out in his EHC plan. X therefore had a loss of opportunity to receive some key parts of special educational needs provision he was entitled to. This included his social, emotional, and mental health provision.

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Action

65. To remedy the injustice the Council caused to Ms D, the Council should, within one month of the final decision:
1. apologise in writing to Ms D to acknowledge the injustice its faults caused her and X;

We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.

2. pay Ms D a symbolic payment of £250 to acknowledge the distress and uncertainty the Council’s faults caused her, including her delayed opportunity to exercise her appeal rights to the SEND tribunal;
3. pay Ms D a symbolic payment of £750 to acknowledge the injustice she experienced as a result of home educating X for nearly a year when she did not agree to continue to do so; and
4. pay Ms D a further symbolic payment of £1,000 (based on £400 per term) to acknowledge the potential loss of special educational needs provision X did not have access to from late 2023 until October 2024.

In total the Council should pay Ms D £2,000.

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

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Decision

67. I found fault by the Council causing an injustice. The Council will apologise and make payment to acknowledge the impact this had on Ms D and X.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman