Summary: Miss X complained about the Council’s failure to provide alternative education and delay in issuing an Education, Health and Care Plan. We have found the Council to be at fault. We have also found fault with the Council’s complaint handling. To remedy Miss X’s injustice, the Council has agreed to apologise and make a payment to her to acknowledge her distress and her daughter’s period of missed education and specialist support. It will also take action to improve its service.

The complaint

1. Miss X complains about the Council’s failure to provide her daughter, Child Y, with alternative education since she was unable to participate in full time learning at primary school since April 2022.
2. She also complains about delay by the Council when issuing an Education, Health and Care Plan.
3. Miss X says this has put significant strain on the family and caused Child X to fall behind in her education. Her overall well-being has also been affected.

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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 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)
5. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), 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. The law says we cannot normally investigate a complaint when someone can appeal 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 appeal. (Local Government Act 1974, section 26(6)(a), as amended)
8. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
9. 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)
10. 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

11. I have investigated what happened between April 2022 and September 2023. This covers the period of time Miss X says her daughter was denied access to education while on the school roll at School P.
12. Paragraph seven (above) applies to this complaint. Although Miss X had a right of appeal to the Tribunal in June 2023, I do consider it was reasonable for her to do so at that time because the Council had accepted the type of school named in the ECHP was no longer appropriate. For this reason, I have investigated what happened between June and September 2023.
13. During my investigation, Miss X has raised further concerns about the actions of the Council, including her daughter’s ongoing lack of full-time education since leaving School P. I have not investigated events since September 2023 because the Council has not had the opportunity to respond to any potential complaint through its complaints process.

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How I considered this complaint

14. I have considered all the information provided by Miss X, made enquiries of the Council and considered its comments and the documents it provided.
15. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative background

Education Health and Care Plans

16. A child with special educational needs may have an Education Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them.
17. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHCPs. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:

• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment; and
• the whole process from the point when an assessment is requested until the final EHCP is issued must take no more than 20 weeks (unless certain specific circumstances apply).

Alternative provision

18. 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.
19. The courts have considered the circumstances where the section 19 duty applies. Case law 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 them 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)
20. The courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give to medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
21. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, a council should retain oversight and control to ensure its duties are properly fulfilled.

The Council’s policy

22. The Council does not have a published policy about children unable to attend school. However, it has explained in response to my enquiries that it expects the following to occur.

• Schools to attempt to reintegrate pupils by them attending at quiet times of the day or a quieter area.
• If this is unsuccessful, for schools to explore alternative provision via a framework of providers.

What happened

23. I have set out below a summary of the key events. But it is not meant to show everything that happened.
24. In 2022, Child Y was on the roll of School P, a mainstream primary school. Child Y suffers with anxiety and has difficulty regulating her emotions. This has impacted on her school attendance and engagement with lessons for several years. There had been some discussion (although not formally recorded) between the Council’s Attendance Department and School P in April 2002. It was agreed the Council would not take action against Miss X about Child Y’s poor attendance because of her individual circumstances.
25. Child Y’s attendance reduced in the summer term of 2022. Miss X told the Council about this in late June 2022 in a letter of complaint. She told the Council it had a duty (under section 19) to provide her daughter with a suitable education because she had been absent due to mental health issues for more than 15 days.
26. In response to this, the Council explained Child Y’s current attendance rate was 86%. This was classed as “persistently absent”. It said it would contact School P to arrange remote learning while she was unable to attend. It was suggested a move to a different school could be appropriate.
27. In addition, a meeting was held the following month later at School P to discuss ways to address the situation. Attendees included Miss X, a social worker, an educational psychologist and an officer from the Council’s school support team. Following a detailed discussion about Child Y’s situation, a “reintegration plan” was devised to improve Child Y’s attendance and manage her return to full time education. It is clearly recorded in the case notes that Miss X wanted Child Y to return to School P in the autumn term.
28. The following term, while Child Y’s attendance did improve, when she arrived at school, she would often become deregulated, and it would take several members of staff to calm her down. She was unable to attend lessons with other pupils and received 1:1 supervision in a separate room. She did not receive any form of curriculum-based learning. This continued for several months.
29. Concerned that Child Y would only receive specialist support if she had an EHCP, Miss X requested an EHC needs assessment in November 2022. This was agreed by the Council. As part of this assessment, the Council commissioned an educational psychology report. This was not received until May 2023 due to resource issues within the relevant service.
30. In April 2023, and around the same time as further complaint from Miss X, School P advised her it did not have the resources to supervise Child Y indefinitely and she was told not to bring Child Y to school unless she was willing to go and participate in lessons. As a result, Child Y attended school for two more days but then did not return. Miss X says she was advised by the educational psychologist that it was harmful to Child Y to force her to attend when it had such distressing consequences.
31. The Council agreed to issue an EHCP on 23 May 2023 with the intention of naming School P within the plan. The proposal was for School P, with additional funding, to arrange a bespoke offer that would include 1:1 support and small group learning activities. Miss X was initially told she could ask School P to arrange alternative provision, but the Council later retracted this statement as being incorrect in an amended complaint response.
32. The final EHCP was issued on 28 June 2023. This named School P at section I. She was allocated 20 hours of specialist provision. This had been agreed in May 2023.
33. Despite Miss X wanting Child Y to continue at School P to avoid further disruption, her continued non-attendance made this possibility unworkable. School P decided it could no longer offer Child Y a place. Relevant professionals discussed her situation at a panel meeting held on 25 July 2023. All parties agreed, including the educational psychologist, that mainstream provision was no longer appropriate for Child Y and recommended a place at an independent special school.
34. As Child Y remained on the roll of School P, in August 2023, the Council advised the school it should use Child Y’s EHCP budget to arrange alternative provision.
35. Since this time, the Council has consulted several other schools. They were either full or unable to meet Child Y’s needs. The Council sought guidance from Child Y’s educational psychologist. In response to this advice, the Council agreed to consult with independent schools in late July 2023. This process started in September 2023. I understand Child Y is receiving some alternative provision.

The complaint

36. Miss X first complained to the Council in June 2022 about Child Y’s lack of education. She complained again in April 2023. In response, the Council’s position (at that time) was that Child Y had a place at School P that was reasonably accessible and available to her. It was therefore not under a duty to offer alternative provision.
37. Shortly afterwards, Miss X brought her complaint to the Ombudsman. This prompted the Council to provide an updated response to her complaint, that took account of more recent events including the issuing of the final ECHP and Child Y being assessed as needing a specialist placement. The Council also acknowledged Miss X's complaint should have been responded to by the service department, rather than the complaints team. In summary, the Council:

• accepted it took longer than 20 weeks to issue Child Y’s EHCP. This was caused by delay in receiving advice from the educational psychologist;
• confirmed School P had been instructed to source alternative provision in mid-August 2023;
• said it was first made aware of Child Y’s problematic attendance in November 2022, when Miss X applied for an EHC needs assessment; and
• explained the Council’s duty to provide alternative provision started in July 2023 when School P was no longer “available and accessible” to Child Y.

38. The Council apologised for the delay in the EHCP process and finding alternative education since May 2023 when Child Y stopped attending School P. It offered a payment of £500 as compensation for Child Y’s missed education and £200 in recognition of Miss X’s time and trouble pursuing her complaint.
39. Miss X remained dissatisfied with this outcome and asked the Ombudsman to continue with the investigation.

Analysis

40. I will consider Miss X’s separate areas of complaint below.

Lack of alternative provision

41. The Council’s position is that it did not have a duty to provide alternative education until the panel meeting in mid-July 2023 because Child Y had a school place that was available and accessible to her.
42. It has also said it was not aware of the situation until November 2022 and so was under no obligation to consider the case before then.
43. I disagree with the Council’s position.
44. From the case records I have seen, I am satisfied the Council (albeit not the Council’s SEN department) was aware of Child Y’s problematic attendance from April 2022 when the Council’s attendance officer was involved. As the attendance officer was reported to be satisfied School P was trying to address the problem, I do not consider the Council’s s19 duties were triggered at that point.
45. The next Council involvement was when Miss X made her first complaint in late June 2022. This was responded to by the Assistant Director of Education. It is disappointing the Council did not seem to be aware of this in its complaint responses to Miss X.
46. At this time, I believe it is fair to say the Council took the view Child Y and Miss X were receiving support from School P and social services to address the barriers to her attendance. The Council considered whether it has a duty under section 19 but decided it did not. I appreciate Miss X disagrees with this, but in the absence of fault in the decision-making process, I cannot question the decision itself. Shortly afterwards, the “reintegration plan” meeting took place.
47. The minutes from this meeting demonstrate all parties took the situation seriously and I am satisfied the correct approach was taken at this time. Recently published government guidance, “Support for pupils where a mental health issue is affecting attendance” (2023) recommends schools take the sort of action that happened in this case.
48. Because the plan was to be implemented in the autumn term. I am satisfied there was no duty to provide alternative education at this point either. I appreciate Miss X says Child was unable to attend School P for health reasons, I have seen no medical evidence to support this at this time. The minutes from the meeting confirmed there was no diagnosis of autism and there had been some previous input from mental health services, but no current involvement. Based on this, I am satisfied the Council was aware of Child Y’s circumstances and took the view its section 19 duties were not triggered. This was based on the fact her attendance was fluctuating, there was a lack of evidence about her absences being specifically health related and the ongoing work being done by School P.
49. The records show Child Y’s attendance did improve as a result of this plan, although I accept she received no formal education. However, just because Child Y was not attending lessons, does not necessarily mean the Council was at fault. It is not unreasonable to say the focus at that time had to be on overcoming Child Y’s school-based anxiety.
50. Matters came to a head in April 2023 when School P said it could no longer support Child Y in a separate classroom. Child Y stopped attending altogether in May 2023.
51. In its final complaint response, the Council gave a conflicting view as to when its duty to make alternative arrangements began. Initially it said this was mid July 2023. Later in the letter it said its duty arose when Child Y stopped attending School P in May 2023. It is disappointing that even at this late stage, that Council has been unclear as to its responsibilities.
52. I have decided the earlier date is when the Council’s duty arose. I say this for the following reasons.

• School P accepted Child Y had not engaged in any learning since September 2022. While I acknowledge School P was trying to work with the family to assist with the reintegration plan, in my view, it should have been clear by May 2023 that this was not working and alternatives should be being considered.
• The EHCP should have been finalised in April 2023. Had the correct timeframe been adhered to, the decision that mainstream provision was unsuitable, would and should have been made sooner.
• Child Y was still attending School P up to May 2023.

53. The Council’s failure to make arrangements for alternative provision when Child Y stopped attending School P in May 2023 was fault.
54. Prior to May 2023, as case law has established, if a council has arranged for the provision of education which is suitable for the child and which is reasonably practicable for them to enjoy, it is not under a duty to provide alternative education simply because, for one reason or another, the child is not taking advantage of it.
55. From the available evidence, I am satisfied the Council was entitled to have the view that School P was using its best endeavours to encourage Child Y to return to full time learning via the integration plan. It was also the professional view of the educational psychologist that mainstream provision remained appropriate for Child Y. Miss X also wanted Child Y to stay at School P.
56. During the course of this investigation the Council has apologised and offered a payment of £500 for not making alternative arrangements sooner. While I welcome this acknowledgment of fault, I do not consider the Council’s remedy goes far enough to remedy the injustice in this case. Child Y was denied access to education for the latter half of the summer term of 2023. She was also denied the additional support that she should have been provided with as part of her EHCP. It is clear from my discussions with Miss X that the impact of this has been significant, both in terms of her own well being and that of Child Y.
57. When recommending a remedy, we seek to remedy the injustice caused as a result of identified fault. The Ombudsman’s Guidance on Remedies states:

• for injustice such as avoidable distress we usually recommend a symbolic payment to acknowledge the impact of the fault as we cannot put the complainant in the position they would have been had the fault not occurred;
• distress can include anxiety, uncertainty, lost opportunity and frustration;
• where there has been a loss of education, the Ombudsman recommends between £900 and £2400 per school term. The amount takes into account a variety of factors including the child’s special educational needs, the stage of the child’s education and whether any partial provision was made.

58. I have taken this Guidance into account when making recommendations to the Council (below).

Delay in the EHCP process

59. The Council has already accepted there was a delay in issuing a draft EHCP. This was caused by a delay in receiving advice from the educational psychology service. The case records also show there was delay in arranging a meeting to discuss concerns raised by Miss X about the content of the EHCP.
60. This impacted on the overall timeline in this case. The law says a final EHCP should be issued within 20 weeks from when the EHC needs assessment is requested.
61. It should have been issued by 17 April 2023. Instead, it was issued on 28 June 2023, a delay of nearly 10 weeks.
62. The Ombudsman expects councils to adhere to statutory timeframes. I acknowledge the delay was caused by the educational psychology report being provided late and that there is a national shortage of educational psychologists which is outside the control of the Council. However, I have concluded that it was still a service failure which caused Miss X distress and inconvenience. This injustice requires a remedy.

Complaint handling

63. I have also identified fault with the Council’s complaint handling. It sent an incorrect version of its stage two response. It also acknowledged the correct Council department did not deal with her complaint.
64. There were also inaccuracies and inconsistencies in its final response. It failed to acknowledge Miss X’s initial complaint in June 2022 and gave different dates upon which the Council accepted responsibility for making alternative provision.
65. This caused Miss X avoidable distress and confusion. This injustice requires a remedy.

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Agreed action

66. To remedy the injustice caused by the identified faults the Council has agreed to take the following action, within four weeks of the final decision on this complaint.
1. Apologise to Miss X.
2. Pay Miss X £1000 to recognise the failure to arrange alternative provision and support for Child Y’s SEN for the latter half of the summer term of 2023.
3. Pay Miss X £250 to recognise the avoidable distress and frustration the lack of alternative provision caused her.
4. Pay Miss X £250 to acknowledge the distress, frustration and uncertainty caused by the Council’s failure to issue the final EHCP in line with statutory timescales. This remedy is calculated at approximately £100 per month from the date the Council should have issued the final EHCP in April 2023 until the date it did so in June 2023.
5. Pay Miss X £200 to recognise her frustration time and trouble involved in the complaint process. This includes recognition of errors contained within the Council’s complaint responses.
6. Reflect on the issues raised in this decision statement and identify any areas of service improvement, specifically in respect of children who are subject to reintegration plans and shortage of educational psychologists. The Council should prepare a short report setting out what the Council intends to do to ensure similar problems do not reoccur. This report should be sent to the Ombudsman.
67. The Council should provide us with evidence it has complied with the above actions.

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Final decision

68. I have completed my investigation. I have found the Council to have acted with fault and the Council has agreed with my recommendations to remedy the injustice to Miss X.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman