Summary: Ms X complained the Council failed to put in place alternative provision of education for her child who was out of education from February 2022 until June 2022. Ms X also complained about the Council telling the school to treat her child’s absence as truancy and failing to complete an urgent annual review of her child’s Education and Health Care Plan. We found fault with the Council failing to provide education for Ms X’s child from 26 April 2022 until 20 June 2022. We also found fault with the Council sending a letter warning about truancy and for delays in handling her complaint. We did not find fault with the Council’s handling of the Education and Health Care Plan review. The Council agreed to provide an apology to Ms X for its fault and pay her £750 for her child’s missed education.

The complaint

1. Ms X complained the Council failed to put in place alternative provision of education for her child, who I shall refer to as Y, who was out of school from February 2022 until June 2022.
2. Ms X also complained the Council failed to complete an urgent annual review of Y’s Education and Health Care Plan (EHC Plan) despite requests since November 2021.
3. Ms X also complained the Council advised the school to treat Y’s absence as a truancy matter resulting in warning letters for absence.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
6. If we are satisfied with a council’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)
7. 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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How I considered this complaint

8. I have considered all the information Ms X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
9. Both Ms X and the Council had opportunity to comment on my draft decision. I considered Ms X’s comments before making my final decision.

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What I found

EHC Plans

Rules and regulations

10. An Education, Health and Care Plan (EHC Plan) is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care.
11. Once the Council completes the EHCP it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
12. 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. 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.
13. 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)
14. 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)
15. 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)
16. The council must give the parent or young person at least 15 calendar days to comment on the proposed changes. (s22 (2)(c) SEND Regulations 2014)
17. 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)
18. In 2022, the case of R (L, M and P) v Devon County Council said when a read proposes to amend an EHC Plan the regulation which requires the Council to notify a parent of its decision within four weeks and the regulation which set outs the process for amending the EHC Plan must be read together. This means the maximum time from the annual review meeting to final plan should be 12 weeks.
19. The Ombudsman can look at any delay in the assessment and creation of an EHCP as well as any failure by the Council to deliver the provision within an EHCP.

What happened

20. The Council issued Y’s EHC Plan on 12 May 2021.
21. Ms X was in contact with the school about Y’s difficulties in attending and the support available to Y at the end of 2021 and start of 2022.
22. Y’s school contacted the Council on 11 February 2022 to request a review of Y’s EHC Plan. Y’s school made the Council aware it was finding it increasingly difficult to deliver the provision in Y’s EHC Plan.
23. The Council and Y’s school arranged for an annual review of Y’s EHC Plan for 31 March 2022.
24. On 31 March 2022, the Council and Y’s school held an annual review of Y’s EHC Plan. At the annual review meeting, Y’s school stated it had been providing the support detailed in Y’s EHC Plan to the best of its ability.
25. The Council sent a letter to Ms X on 29 April 2022 confirming its intention to amend Y’s EHC Plan. The Council sent this letter alongside a draft EHC Plan.
26. The Council issued Y’s final EHC Plan on 26 May 2022 naming a new educational placement for Y.

Analysis – EHC Plan provision

27. The final EHC Plan produced by the Council on 12 May 2021 detailed the support and provision Y needed.
28. The Council provided funding to Y’s school so it could provide the provision detailed in Y’s EHC Plan. The Council has evidenced provision of this funding and how it intended this funding to meet the support detailed in Y’s EHC Plan.
29. The Council has met is duty to provide funding for the support detailed in Y’s EHC Plan.
30. Y’s school has reported to the Council it has been providing the support in Y’s EHC Plan but that it was finding it increasingly difficult to meet Y’s needs. It is not for the Ombudsman to investigate the actions of Y’s school in providing the support.
31. Following feedback from the school, the Council has changed Y’s educational placement to better suit his needs in production of the final EHC Plan in May 2022.
32. The Council has taken suitable steps to ensure Y is receiving the support in his EHC Plan and I do not find fault.

Analysis – EHC Plan review

33. The first contact with the Council to request a review of Y’s EHC Plan was on 11 February 2022. There is no evidence of contact between either Ms X or the school with the Council before this date to request a review of Y’s EHC Plan.
34. The Council subsequently arranged to complete the annual review meeting for Y’s EHC Plan on 31 March 2023. This timescale for arranging the annual review meeting for Y’s EHC Plan from request is not excessive and I do not find fault with the Council.
35. A council must complete an annual review of a child’s EHC Plan within 12 months of the previous final EHC Plan. Completion of an annual review is the date on which the Council confirms with a child’s parents if the Council intends to amend, maintain or cease an EHC Plan.
36. The Council confirmed with Ms X on 29 April 2022 it intended to amend Y’s EHC Plan. The Council completed this action within 12 months of the previous final EHC Plan issued on 12 May 2021. The Council has met the statutory timescales and I do not find fault.
37. While the Council has met this timescale, a council should issue its decision to amend within four weeks of an annual review meeting. The Council sent this notification to amend a day outside this 4-week timescale, this was fault.
38. While the Council was at fault for issuing the notification letter a day late, it took less than the allowed 12-week timescale to produce Y’s final EHC Plan following the annual review meeting. This fault did not cause an overall delay in issuing the final EHC Plan meaning this fault did not cause an injustice to Ms X or Y.
39. The Council has overall completed the annual review process of Y’s EHC Plan in the statutory timescales and I do not find fault with the Council.

Alternative Provision of education for children

Rules and regulations

40. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them”. (Education Act 1996, section 19(1))
41. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
42. The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
43. The education provided by a council must be full-time unless a 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)
44. 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 mind? How councils can do more to give children out of school a good education, published in 2016)
45. We made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (with the exception of minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
• consider enforcing attendance where a child has a suitable school place available, and where there is no medical or other reason that prevents them attending;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.
46. Our focus report states local authorities should not assume that schools shoulder the entire responsibility for a child’s education.
47. Statutory guidance (Children missing education statutory guidance for local authorities) sets out that the “school should agree with their local authority, the intervals at which they will inform local authorities of the details of pupils who fail to attend school regularly, or have missed ten school days or more without permission.” This applies to all schools, including academies.
48. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when it is clear a child would be away from school for 15 days or more.
49. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

What happened

50. As noted in paragraph 21, Ms X was in contact with the school at the end of 2021 and 2022. But, Ms X was not in contact with the Council about Y’s absence from school at that time.
51. On 11 February 2022, Y’s school contacted the Council to request a review of Y’s EHC Plan. The school told the Council that Y was struggling to attend school and his attendance had been low.
52. On 14 February 2022, Y began a phased return to school. Y’s phased return to school broke down on 3 March 2022 with Y only attending for one further session at school after this date.
53. Ms X spoke with the Council on 4 March 2022 and told them Y’s phased return to school had broken down. Ms X said the school was not providing suitable support for Y to attend.
54. The school held a meeting with Y and Ms X on 7 March 2022 about a new phased return plan.
55. On 16 March 2022, Ms X confirmed with the Council the school was looking to put in place a second phased return plan. Ms X said the school had amended the plan put forwards by Y’s Mental Health Practitioner. Ms X also queried that Y had now missed 15 days of school.
56. Y’s Mental Health Practitioner provided a copy of their proposed phased return plan to the Council advising they believed this was the best way to get Y back into school. Y’s Mental Health Practitioner said the phased return plan should be reviewed on 31 March 2022 alongside the EHC Plan review.
57. The Council sent Ms X a warning letter on 21 March 2023 about Y’s lack of attendance at school. Ms X and Y rejected the changes by the school to the phased return plan.
58. On 31 March 2022, the Council and Y’s school held an annual review of Y’s EHC Plan. The annual review notes show confirmation that Y was not attending school with the attendance stopping entirely since 7 March 2022. Y’s school also confirmed that Y “is not able to currently attend school” and it was “not able currently to support Y or build/re-build relationships” with Y. Y’s school suggested a change of placement for Y.
59. The Council issued Y’s final EHC Plan on 26 May 2022 naming a new educational placement for Y. Y began to attend this new setting on 20 June 2022.

Analysis – Alternative provision of education

60. Y’s attendance at school was sporadic but deteriorating from the start of the 2021/2022 academic year.
61. By February 2022, the school had agreed a phased return plan with Y to help support his access to education.
62. The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness or ‘otherwise’, the Council must intervene and make such arrangements itself. The duty arises after a child has missed fifteen days of education.
63. The Council first became aware of Y’s attendance issues with school on 11 February 2022. Before 11 February 2022, the Council was not aware of Y’s absence from school and access to education was the responsibility of Y’s school.
64. The Ombudsman’s recommendations for councils say the Council should have decided whether to require Y to attend school or provide Y with suitable alternative provision. At the least, the Council should have adopted a “strategic and planned approach” to reintegrate Y into mainstream education.
65. When the school first told the Council of Y’s absence, it already had a phased return plan in place for Y. Given a strategic and planned approach to get Y back into school was in place, it would not have been suitable for the Council to provide alternative provision of education for Y at this point.
66. The first phased return plan broke down on 3 March 2022 with an entire stop on attendance on 7 March 2022. While Y stopped attending school, Y’s Mental Health Practitioner suggested a second phased return plan for Y to the school. Y’s Mental Health Practitioner said they believed this plan was the best course of action for Y to get them back into education.
67. The Ombudsman’s recommendations for councils say the Council should consult with professionals involved in a child’s education and welfare and take account of any input. It would again not have been suitable for the Council to provide alternative provision of education when a professional involved in Y’s care suggested a second phased return plan.
68. Y’s mental health practitioner said the second phased return plan should be reviewed at Y’s EHC Plan review. I do not find fault with the Council not putting in place alternative provision of education before 31 March 2022.
69. On 31 March 2022, both Ms X and the school confirmed that Y was no longer in school and the phased return plans had failed.
70. The Council’s section 19 duty arose when it became aware that Y would be absent from school for more than 15 days. The attendance record provided by the school on 31 March 2022 confirmed Y had been absent for 15 days on this date.
71. The 31 March 2022 is the effective date the Council was notified that Y had been absent from school for 15 days. And there was no plan in place to reintegrate Y into school. The Council’s section 19 duty was invoked on 31 March 2022 with it being responsible to provide education from the sixth day following this date.
72. The sixth day following 31 March 2022 was 26 April 2022 because of the two-week Easter break starting on 8 April 2022.
73. The Council failed to provide any education to Y from 26 April 2022 until 20 June 2022, when he started at his new educational placement. This was fault.
74. Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision put in place, a child’s individual needs and whether they are in a key academic year.
75. Y missed a total of half a term of education without any educational provision. Given this missed education and the potential impact this had on Y, the Council should pay Ms X £750 for the lost education. Ms X may use this to provide any educational support for Y she sees fit.

Analysis – Truancy

76. The Council issued a letter to Ms X on 21 March 2022 to advise of the actions it may take it Y failed to attend school. The Council said it may fine Ms X if she did not ensure Y attended school. The Council issued this letter after a discussion with Ms X on 4 March 2022.
77. While the Council is entitled to issue such a letter to a parent, the Council failed to consider the individual circumstances in Y’s case. The Council was aware that phased return plans were in place for Y in both February 2022 and March 2022. When the Council issued the letter on 21 March 2022, it would not have been aware the second phased return plan had failed. Issuing a truancy letter to a parent of a child who is undergoing a phased return to education is fault.
78. While the Council was at fault, it did not escalate this matter down its truancy process or issue any fines to Ms X. The Council should apologise for issuing this letter.

Analysis – Service Improvements

79. The Council’s response to the Ombudsman also shows a misunderstanding about when it should provide alternative provision of education for a child.
80. The Council said it received no evidence to suggest Y could not attend school on a medical basis other than for one week. As such, the Council says it was under no duty to secure suitable alternative education for Y and the responsibility to provide education for Y remained with the school.
81. While Y may, debatably, have been medically able to attend school, the Education Act says a medical inability is only one reason a child may not be able to attend school. The term “otherwise” in the Education Act covers the general failure of a child to access education.
82. The Council failed to consider the individual circumstances of Y not accessing education after 31 March 2022. Despite the Council being aware that Y was not accessing education and also seeking a new education placement for Y following the annual review meeting, it failed to consider it Section 19 duty. The failure to consider this duty stems from a misunderstanding by the Council of when this duty is applicable. The Council should provide training and guidance to its staff about this matter.

Complaint handling

What happened

83. Ms X made a formal complaint to the Council on 20 March 2022 about the failure to provide education for Y in 2022 and the actions surrounding his absence from school.
84. On 28 April 2023, the Council issued a Stage 1 complaint response to Ms X. The Council said:
• It was up to the school about how to record Y’s absence.
• It issued a warning letter to Ms X on 21 March 2022 but took no further action about Y’s absence.
• It arranged an annual review of Y’s EHC Plan following contact in February 2022. It considered it held this annual review at the earliest possible date in order to secure professional input.
85. Ms X sought a response at Stage 2 of the Council’s complaints process on 18 June 2023.
86. The Council sent it Stage 2 complaint response on 19 July 2023. The Council said:
• It ensured Y’s school had the funding it needed to provide the provision detailed in Y’s EHC Plan.
• Following the annual review meeting on 31 March 2022 it sought a new educational placement for Y.
• In response to the warning letter it issued on 21 March 2022, the Council received a GP letter confirming Y’s diagnosis of Autism Spectrum Disorder and subsequently stopped any further action.
• Without sufficient evidence to suggest Y could not attend school due to medical needs the Council would have expected Y to attend school on a full-time basis.

Analysis

87. The Council’s complaint procedure says it will respond to complaints within 20 working days at both Stage 1 and Stage 2 of its complaint procedures.
88. The Council took 27 working days to respond to Ms X’s Stage 1 complaint and 22 working days to respond her Stage 2 request. Overall, the Council has responded to Ms X’s complaint 9 days outside its complaint timescales. This was fault.
89. The Council should apologise for the delays in issuing its complaint responses.
90. Ms X advised she needed to hire an advocate to act on her behalf in raising complaints with the Council because of her dyslexia.
91. The Ombudsman can consider an award for a quantifiable financial impact when a person has incurred a cost because of the fault of the Council.
92. However, the Ombudsman considers that a person should not normally need a professional adviser, or similar, to help them make a complaint to the Council or the Ombudsman. But, we will consider each circumstance on its own merit and may consider reimbursement of professional fees where a complaint is particularly complex.
93. Having considered the circumstances of Ms X’s complaint, I cannot justify an award for her advocate’s fees. This is because the matter complained about was not particularly complex. While I appreciate Ms X has dyslexia the evidence shows she could have complained without using an advocate. Ms X understood the premise of the Council being responsible to provide education before she hired her advocate. I have also seen that Ms X was in communication with both the school and council before hiring the advocate. I do not doubt hiring the advocate has helped her in making the complaint to the Council. But, I cannot consider the expense incurred for this is an unavoidable and direct result of the fault by the Council.

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Agreed action

94. Within one month of the Ombudsman’s final decision the Council should:
• Provide an apology to Ms X for failing to provide alternative provision of education for Y from 26 April 2022 to 20 June 2022, for issuing the truancy letter in March 2022 and for delays in handling her complaint.
• Pay Ms £750 for Y’s missed education from 26 April 2022 to 20 June 2022. Ms X may use this money to provide educational support for Y as she sees fit.
95. Within three months of the Ombudsman’s final decision the Council should:
• Provide guidance and training to its staff about when and how it should consider its Section 19 duty to provide education. The Council should refer to the Ombudsman’s guidance, Out of school… out of mind? How councils can do more to give children out of school a good education, published in 2016, when providing this guidance and training to its staff.
96. The Council should provide us with evidence it has complied with the above actions.

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Final decision

97. There was fault by the Council as the Council has agreed to my recommendations, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman