The Ombudsman's final decision
Summary: We have found fault with the Council for failing to secure alternative provision for Mrs X’s son, Y for a term. This caused Y the injustice of missing a term of education. The Council has agreed to apologise and make Mrs X a symbolic payment to remedy this injustice.
The complaint
Mrs X complained the Council failed to provide her child, Y, with a suitable education and the provision outlined in his Education, Health and Care (EHC) Plan.
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(1), as amended)
What I have and have not investigated I have not investigated Mrs X’s concerns about the suitability of the named school in Y’s EHC Plan following the annual review. This is because Mrs X could have appealed this decision.
I have investigated the Council’s actions after it became aware that Y was not engaging with the alternative provision being arranged by his school.
I have not investigated the period after Mrs X brought her complaint to the Ombudsman.
How I considered this complaint
I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
Mrs 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
Law and guidance Education, Health and Care (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 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 then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (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. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.
If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.
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).
What happened Mrs X’s son, Y has Special Educational Needs (SEN) and an EHC Plan. Y was on roll at a mainstream school, named in Section I of his EHC Plan but had not attended school for some time. The school was delivering alternative provision for Y.
In April 2024, at the annual review meeting, Mrs X requested a change in school placement. She said the school’s AP could not meet Y’s needs.
In June, the Council wrote to Mrs X to confirm that it would be maintaining Y’s EHC Plan but would not be amending it. Mrs X did not appeal this decision.
The Council consulted three other schools but none of them offered Y a placement.
In September 2024, the school informed the Council that Y was not engaging with the AP.
The Council consulted a post-16 college, but it would not accept Y as the deadline for applications had passed. The Council said it only became aware of this provision in September so could not have applied sooner.
Mrs X complained about the Council’s failure to find a placement in October 2024. The school removed Y from the school roll in November 2024.
Mrs X then brought her complaint to the Ombudsman.
My findings
Under Section 19, the Council had a duty to consider whether it needed to secure AP for Y when it became aware that he had stopped engaging with the school AP. Although the Council was actively consulting schools and trying to secure a placement, it did not arrange AP between September 2024 and January 2025. This was fault.
This caused Y the injustice of being without suitable education or SEN provision for the first term during his final year at school.
The Council has agreed to apologise to Mrs X for not meeting its Section 19 duties and make her a symbolic payment of £900 in recognition of Y’s missed education.
Agreed action
Within 4 weeks of my decision, the Council has agreed to: Apologise to Mrs X for failing to secure alternative provision for Y between September 2024 and January 2025.
Pay Mrs X £900 in recognition of Y’s missed education.
The Council should provide us with evidence it has complied with the above actions.
Final decision
I have found fault causing an injustice. The Council has agreed to take action to remedy the injustice.
Investigator's decision on behalf of the Ombudsman