The Ombudsman's final decision
Summary: Ms X complained the Council has failed to provide suitable full-time education for her daughter since February 2023 when she was no longer able to attend school. The Council also failed to ensure she received the therapies specified in her EHC Plan. The Council’s failure to properly consider and record how it satisfied itself Y was receiving a suitable education while unable to attend school is fault. As is the Council’s failure to complete Y’s Annual Review and issue a final EHC Plan within the statutory timeframes. This fault has caused Ms X and Y an injustice.
The complaint
The complainant whom I shall refer to as Ms X complained the Council has failed to provide suitable full-time education for her daughter since February 2023 when she was no longer able to attend school. The Council also failed to ensure she received the therapies specified in her EHC Plan.
Ms X says her daughter was offered only 13 hours per week of on-line tuition which was neither suitable for her needs nor full-time provision. This has affected her daughter’s mental health and well-being and has also impacted Ms X’s own health and well-being.
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) 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) The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
What I have and have not investigated I have not investigated events since September 2023 when the Council issued a final EHC Plan. Ms X had a right of appeal to the SEND Tribunal.
How I considered this complaint
As part of the investigation, I have: considered the complaint and the documents provided by Ms X; made enquiries of the Council and considered the comments and documents the Council provided; discussed the issues with Ms X Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Education, Health and Care 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 council can do this.
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.
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) 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.
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.
Alternative provision 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
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’) The Ombudsman issued a focus report “Out of school, out of sight?"
in July 2022, updated in August 2023. This highlighted guidance for local authorities to reflect on their services and consider what improvements may be necessary, to ensure children who cannot attend school receive suitable full-time education.
What happened here Ms X’s daughter Y has an EHC Plan and attended a mainstream school. Y stopped attending school in February 2023 due to illness. The school arranged for Y to have online lessons in English, mathematics, science, and spiritual, moral social and cultural development for a total of 13 hours each week. Y also had fortnightly sessions online with the schools speech and language therapist (SALT).
In early March 2023 both the school and Ms X asked for an early Annual Review of Y’s EHC Plan. An Annual review meeting was arranged for 23 March 2023. It was agreed at the meeting to request a change in the type of setting as Y’s needs could not be met in a mainstream setting.
The minutes of the meeting also note Ms X was concerned Y had already missed so much of her education and online learning would not be good for her long term. Ms X said Y loved history and was missing it. She suggested she could bring Y into school just for certain lessons but this would have to be led by Y. Ms X agreed she would discuss this with Y.
The Council sent Ms X a draft EHC Plan on 2 May 2023 and a further amended plan on 25 May 2023.
The Council also prepared a summary of Y’s case to be considered by the EHC Plan Governance Board. This set out the school’s view that it could no longer meet Y’s needs and its recommendation for a change in setting type. It also included Ms X’s parental views from the EHC Plan review. In these Ms X noted the online learning was working well and Y was able to access the work set for her with low level demand. Y’s anxiety was less and Ms X believed Y had covered more work in the online learning period than in the last eight months at school. In addition Ms X set out the difficulties Y experienced at the mainstream school and why this was not the right environment for her.
On 7 June 2023 the Council’s EHC Plan Governance Board agreed to a change in placement. It noted that the online school was working well for Y and that it should continue in the interim. The Council asked Ms X to confirm her preference for school.
On 20 June 2023 Ms X identified three schools as their parental preference. She also raised concerns that Y was still only accessing 13 hours education a week and asked how this could be increased. In addition, Ms X asked for an update on any changes to the Plan in relation to SALT provision.
Having received an update from SALT the Council send Ms X an amended plan. Ms X raised concerns about some of the content, including the SALT provision. The Council arranged a meeting for 13 July 2023 to discuss the Plan. Following this meeting the Council sent consultation letters to Ms X’s preferred schools. None of these schools were able to offer Y a place.
The Council also contacted Y’s school to confirm what alternative provision Y was receiving and whether a history lesson could be added. The school noted the Annual Review minutes showed Ms X intended to discuss the logistics of a history lesson with Y. It said that without medical evidence in March 2023 it was unable to send work home for Y. The school also noted that at around that time Ms X no longer wanted to communicate with the school which made it difficult to plan.
The school confirmed Y had 13 hours of tuition each week and noted she had experienced quite a few technical hitches which had impacted on her attendance. It said these had been resolved and the online tuition service would also offer history lessons from September.
I have not received any evidence the Council discussed Ms X’s concerns about the number of hours or suitability of online tuition with her at this stage.
The Council issued a final EHC Plan on 13 September 2023.
Ms X wrote to the Council on 13 September 2023 outlining her concerns about Y’s EHC Plan and education. She considered the Governance Board had misunderstood Y’s needs as she does not meet the criteria for Learning and Additional Needs (LAN) schools.
She also complained that Y had only had access to 13 hours a week of online learning. Ms X said the school should have included history lessons in March 2023 but had not done so. She also complained Y’s SALT provision had been inconsistent. Ms X said Y was initially able to access on line learning however it became clear over time that she was not engaging or learning as she struggled to process the material being taught.
The Council advised Ms X that her concerns about Y’s needs not being met at school were a matter for the school. It said it was not appropriate for the Council to respond to these concerns.
In relation to Ms X’s complaint about educational provision the Council noted the school had arranged online school provision for 13 hours a week and had provided a laptop. It suggested that if Ms X was not satisfied with the tuition in place she should discuss this with the school.
Ms X was not satisfied with the Council’s response and asked for her complaint to be considered further. The Council reviewed Ms X’s complaint and responded in November 2023. It set out the responsibilities of the school, parents, and councils in relation to SEN support and education provision.
It also noted Government guidance says that full time education ranges from 21 hours a week at key stage 1 to 25 hours a week at key stage 4. If the provision is one to one tuition, the hours of face-to-face provision could be fewer as the provision is more concentrated. It said the provision must be suitable to the child’s age, ability and aptitude, including any special needs.
The Council was satisfied the school had made best endeavours to support Y with alternative education. It reiterated that the Council would contact Ms X and the school to discuss the provision of history lessons while a placement is found for Y.
The Council noted its previous response had set out the SALT provision provided, explained why sessions were missed and how this was rectified. It said no further outcome could be achieved.
In addition the Council acknowledged there had been a delay in consulting with schools. This was due in part to delays in the Annual Review process, which was not completed within the required 12-week timeframe.
The Council apologised and offered to pay £300 in recognition of the delays in the Annual Review process.
Ms X remains dissatisfied with the Council’s response and has asked the Ombudsman to investigate her concerns. Since complaining to the Ombudsman Y has begun a 12-week assessment placement at a specialist school. Ms X would like Y to have a permanent place at this school. She believes that if she had not identified this school Y would still be receiving online tuition. Ms X asserts that online tuition is not appropriate for children with autism and that Y would have been able to engage better if she had been offered face to face tuition. She feels that in the right circumstances Y could have engaged in full time education.
In response to my enquiries the Council says that as Y was on roll at school, the school was expected to provide alternative provision in the form of online learning. It says Y accessed the online school and SALT online. It has again reiterated that where provision is provided as one to one tuition, the provision is more concentrated so the number of hours provided can be less.
In relation to SALT provision the Council says there were four sessions planned in the spring term of 2023. Y attended two of these, was absent for one and refused to attend one. A further four sessions were planned for the Summer term of 2023. The Council says Y attended two session and did not attend the other two. It say there was a miscommunication regarding one of these dates so a further session was arranged, which Y attended.
Y’s EHC Plan says Y will receive online therapy sessions once a fortnight while awaiting a placement. On transition to a new school Y will be offered three sessions in the autumn term.
The Council says the delay in the Annual Review process was largely due to staff changes which placed additional pressure on existing staff in the SEND service.
Analysis The Council’s failure to complete the EHC Plan Annual Review in accordance with the statutory timeframes is fault. The whole process should be completed within 12 weeks of the review meeting. In this case the Council took almost 25 weeks. The Council should have issued a final Plan by 15 June 2023 but did not do so until 13 September. Delays of this nature are both concerning and clearly unacceptable.
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.
The Council acknowledges it did not meet the statutory timeframe and has offered to pay £300 in recognition of the frustration this caused. This is an appropriate remedy.
The law requires a council to arrange suitable education for a child it knows cannot attend school due to medical reasons. When Y stopped attending school in February 2023 the school put alternative provision in place.
It is unclear how or why the school determined that thirteen hours provision per week was appropriate. However the documentation shows Ms X was initially happy with alternative provision and that Y was engaging well with the online tuition.
Statutory guidance is clear that councils are not expected to become involved where a school has made arrangement to deliver suitable education outside of school. But we would expect the Council to objectively consider whether the education arranged by the school is suitable. Particularly when Ms X raised concerns in June 2023 about the level and suitability of provision provided.
The documentation shows the Council sought confirmation of the provision available to Y in July 2023, but there is no evidence it considered whether this level of provision was appropriate or whether online tuition was suitable for Y’s particular needs or ability. The Council says the school used its best endeavours to support Y with alternative provision, but that is not necessarily the same as providing a suitable education.
I recognise it is for the Council to decide what education is suitable. But it is clear it should be full-time, unless this would not be in the child’s best interests. I have not received any evidence a full-time education would not be in Y’s best interests. There is no fixed definition of full-time education, but it should be equivalent to the education they would receive in school. As the Council has highlighted, where a child receives one to one tuition, the hours of face-to-face provision could be fewer as the provision is more concentrated.
However, the Council has not identified the number of hours online tuition it considers would equate to a full-time education in this instance. Nor has it provided any evidence it has specifically considered whether 13 hours a week online learning was a suitable full-time education for Y.
It is also disappointing that when the Ms X complained about the level of provision in September 2023 and told the Council Y could not engage with online learning, the Council referred her back to the school. Particularly as by this stage Y’s EHC Plan specifies a specialist setting and no longer names the school, and the Council was aware Ms X’s relationship with the school had broken down.
I consider the Council’s failure to properly consider and record how it satisfied itself Y was receiving a suitable education amounts to fault.
Y’s EHC plans include OT provision. The documentation suggests Y has continued to receive some OT provision while out of school in the form of fortnightly online therapy sessions.
In considering whether the fault identified has caused an injustice to Y, I am mindful that Ms X noted in May 2023 that the online learning was working well and supporting Y’s needs and that she was able to access the work set for her. It is therefore possible that had the Council considered the provision at that stage it may have determined Y was receiving a suitable education. However, by June 2023 Ms X was raising concerns about the amount of provision and Y’s ability to engage.
I consider the Council’s failure to demonstrate it properly considered and satisfied itself that Y was receiving a suitable education means Y has potentially lost out on a fuller education in the second half of the summer term.
I note that Y remained out of education until she started a 12-week assessment at a specialist school in December 2023. However I am only considering events up to September 2023 when the Council issued a final EHC Plan and Ms X could have exercised her right of appeal.
The Council’s response to Ms X’s complaint explains the Council it is undertaking a full review of its SEN services to ensure it is able to meet all the statutory obligations. Because of the above I have decided not to make further service improvement recommendations until after the Council completed its SEN services review.
Agreed action
The Council has agreed to : apologise to Ms X and Y for the failure to properly consider and record how it satisfied itself Y was receiving a suitable education while unable to attend school. And for the delay in the EHC plan review process and in issuing a final EHC Plan. 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.
make a symbolic payment of £400 to Ms X to recognise the uncertainty about what alternative provision Y may have received in June and July 2023 if the Council had properly considered the suitability of the provision put in place by the school.
pay Mrs X £300 to acknowledge the distress, frustration and uncertainty she experienced as a result of the Council’s failings.
The Council should take this action within one month of the final decision on this matter and provide us with evidence it has complied with the above actions.
Final decision
The Council’s failure to properly consider and record how it satisfied itself Y was receiving a suitable education while unable to attend school is fault. As is the Council’s failure to complete Y’s Annual Review and issue a final EHC Plan within the statutory timeframes. This fault has caused Ms X and Y an injustice.
Investigator’s final decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman