The Ombudsman's final decision
Summary: There was fault the Council delayed issuing an Education, Health, and Care Plan after a review. That fault caused Ms X distress through avoidable uncertainty about her child’s special education provision, and it also delayed her right of appeal. There was also fault the Council did not properly consider education provision for Ms X’s child while they were out of school. That fault caused Ms X an injustice because of distress, and it caused her child an injustice because of missed education provision. The Council have agreed to remedy these injustices in line with my recommendations.
The complaint
Ms X complained the Council delayed finalising an Education, Health, and Care (EHC) Plan, for her child (G) after a review in 2023. Ms X said this meant G missed out on additional support they would likely have been due at a critical time in their education.
Ms X also said the Council did not do enough to ensure G had sufficient alternative education provision while they were out of school, and this has inhibited their development.
The Ombudsman’s role and powers
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) 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) When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
How I considered this complaint
I spoke to Ms X and considered the information she provided.
I considered the Council’s comments and the documents it provided.
I considered the special educational needs and disability (SEND) code of practice which councils have a duty to follow.
Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
What I found
What should have happened EHC Plan 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.
Reviewing EHC Plans Within four weeks of an EHC 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) 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.
EHC reviews Recent caselaw says councils must, from March 2022, send the parent or young person the final amended EHC Plan within a maximum of 12 weeks of the annual review meeting. It says councils must send the decision letter alongside any proposed changes to the EHC Plan within four weeks of the review meeting and issue a final plan no later than eight weeks after the decision letter is sent. R (L, M, and P) v Devon County Council [2022] EWHC 493 Alternative provision- general section 19 duty 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.
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) The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
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)) The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA) The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’) What happened EHC Plan Ms X told me between 2020-2022, G had previously lived in the Council’s area. In the late part of 2022, they moved to Authority Two’s area and then returned to the Council’s area in February 2023.
In late April, Ms X told the Council that G was now intending to remain in the Council’s area, and she asked the Council to transfer G’s EHC Plan.
In late May, she followed this up and told the Council that Authority Two was in the process of reviewing G’s EHC Plan. The notes of the annual review, held in early May, said G’s EHC Plan would need amending. The notes also show G had not been in school since January that year.
At the end of May, Ms X chased the Council about her request for G’s EHC Plan to be transferred. The Council acknowledged this and arranged for a caseworker to contact her.
In mid-June, a caseworker spoke to Ms X and noted details about G’s EHC review. At the same time, the caseworker contacted G’s school and asked for information about the review. The caseworker also sent Ms X details about alternative education providers for children who were out of school.
In mid-July, the Council told her it would amend G’s EHC Plan and in mid-September, the Council sent Ms X a proposed amended EHC Plan.
After this point, the Council then actively considered Ms X’s requests and planned a meeting to try and resolve her concerns about provision. In late October, Ms X asked the Council to consider an education otherwise than at school (EOTAS) package for G.
In late March 2024, the Council issued a final EHC Plan and named G’s placement as EOTAS for the remainder of year 11.
Alternative Provision In late April, when Ms X told the Council that G was now living with her in the Council’s area, she also told it that G was not attending school.
Because she did not get a response, Ms X followed this up in late May. She asked the Council to find alternative provision because G was out of school. At the end of May, the Council arranged for a caseworker to speak to Ms X.
In June, an internal Council panel agreed it would provide funding for eight hours of tuition per week, while G was out of school. In late June, Ms X escalated her concern because the agreed provider was only able to deliver four hours per week and Ms X said she wanted a full-time equivalent.
In mid-August, G’s case notes are recorded as saying the Council had funded eight hours tuition per week but was only receiving four hours each week. The Council’s case notes reflect in September, G was then receiving 6 hours tuition per week.
I asked the Council how it had considered the amount of alternative provision it had provided for G, and it told me its education engagement team had not been involved in G’s case.
My findings
EHC Plan Ms X told the Council in late April that G was now living in their area and had an EHC Plan which would need transferring across. Ms X followed this up in late May and then again at the end of May. The Council did not respond to either of Ms X’s initial requests in April or late May, before it acknowledged her follow up call at the end of May.
At this point G’s school had carried out an annual review meeting and in mid-June, sent the review paperwork through to the Council. Within four weeks of being provided the review paperwork, the Council issued a draft amended EHC Plan.
Case law sets out an expectation the Council should issue a final EHC Plan no later than 12 weeks after an annual review. This means the Council should have issued a final EHC Plan by late July. Had the Council done this, it would have then given Ms X a right of appeal to the SEND Tribunal, if she was unhappy with the Council’s decisions on either the provision or placement. It would also have meant the Council would have allocated a school place, available for G, in time for them starting Year 11 in September.
The Council did not issue the final EHC Plan until March 2024, which was a delay of around 8 months. That is fault and it caused Ms X an injustice, because it delayed her right to appeal the final EHC Plan. Ms X also experienced distress because of avoidable uncertainty for longer than necessary, about G’s education including their SEP.
Alternative Provision When a child is out of school, the law says the education provided by the Council must be full-time unless it decides that full-time education would not be in the child’s best interests, for reasons of their physical or mental health. In addition, it also says the education provided should be suitable to a child’s age, ability, and aptitude and to any special educational needs they may have.
The Council did not properly turn its mind to each of these considerations and regularly review them in G’s case. That is fault.
This fault caused Ms X an injustice because she was left with distress through avoidable uncertainty about what education G could have had, if but for fault.
Coupled together with the earlier fault I have identified (paragraph 37), this fault also caused G an injustice. On balance, I find this meant G was likely without adequate provision, including any special education provision they may have been due, between September and December. The evidence shows G had limited provision made available at a significant time in their schooling.
Service Improvement We recently asked the Council to tell us about how it is improving staffing in its SEND team, which will address some of the issues Ms X complained about. Because of that, I do not need to make another service improvement recommendation about delays.
We also recently wrote a focus report called ‘out of school, out of sight?’ where we emphasise the Council is responsible for assessing and deciding on suitable alternative education when a child is not in school. The Council have agreed it will carry out my service improvement recommendation here.
Agreed action
Within one month of the date of my decision, the Council have agreed it will: Pay Ms X £300 as a symbolic payment for distress.
Pay Ms X £1300 as a symbolic payment, for the benefit of G, for missed education provision including SEP for an academic term.
Ensure its SEN caseworkers have had sight of our focus report as highlighted at paragraph 43.
The Council should provide us with evidence it has complied with the above actions.
Final decision
I have completed my investigation with a finding of fault as highlighted at paragraphs 37 and 39 and that fault caused an injustice. The Council have agreed it will remedy this injustice in line with my recommendations.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman