Summary: Mrs X complained the Council delayed assessing her child, W, for an Education, Health and Care plan and failed to put alternative provision in place when W could not attend school. The Council was at fault for delay in carrying out the assessment for W’s Education, Health and Care plan. This caused Mrs X frustration and meant W was delayed in receiving special educational provision. The Council was also at fault for failing to properly consider if it should arrange alternative provision when W was out of education. On balance, had it acted without fault, the Council would have put provision in place. Its failure to do so had a negative impact on W’s development and learning. The Council will apologise to Mrs X. It will also pay Mrs X £2000 in recognition of the injustice she and W experienced. Finally, the Council will carry out staff training on the alternative provision duty and review the form it uses to seek information from medical professionals on a child’s health needs.

The complaint

1. Mrs X complained the Council delayed assessing her child, W for an Education, Health and Care (EHC) plan and failed to put alternative provision in place when W could not attend school.
2. Mrs X also complained:
• W’s school did not provide adequate support to meet W’s needs or support them to attend classes; and
• other agencies independent of the Council failed to provide W with suitable support.
3. She said this caused W distress and meant their educational needs were not being met.

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What I have and have not investigated

4. I have investigated the points in paragraph one. I have not investigated the points in paragraph two because the actions of W’s School and the other agencies are not in the Ombudsman's jurisdiction. It is open to Mrs X to complain to those organisations directly.

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The Ombudsman’s role and powers

5. 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)
6. 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)
7. 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)
8. 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

9. I have considered:
• all the information Mrs X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the relevant law and guidance and the Ombudsman's guidance on remedies.
10. Mrs X and the organisation 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

Relevant law and guidance

EHC assessment

11. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. In order to have an EHC plan, a child must first have an assessment.
12. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.
13. Councils must take no more than 20 weeks from the date someone requests an EHC plan assessment to the date the council issues the child’s final EHC plan.
14. As part of the assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes psychological advice and information from an Educational Psychologist (EP). Those consulted have a maximum of six weeks to provide the advice.
15. The Council's website says that as of early November 2022 it was changing the workload of its EP’s so they could focus on completing assessments for EHC plans. This should have allowed the EP’s to complete around 85 extra assessments in November and December 2022. The website also says the Council is urgently trying to recruit more EP’s and has hired a specialist recruiter to facilitate this.

School attendance

16. The Education Act 1996 places a duty on parents to ensure their children of compulsory school age, receive a suitable full-time education. Failure to meet this duty is an offence. Councils have the power to prosecute parents who fail to ensure their child’s regular attendance at school. If the court finds a parent guilty of an offence they can receive a fine or imprisonment of up to three months.

Alternative Provision

17. 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.
18. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
19. 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 medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
20. The Courts have also found that when deciding if a child is out of education for ‘other’ reasons, councils should consider whether the education offered is reasonably possible or reasonably practical to be accessed by the child.
21. 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)
22. We made some recommendations. This included that councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for 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;
• decide, based on all the evidence, whether to require attendance at school (and therefore prosecute parents if they do not ensure attendance) or provide the child with suitable alternative education; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

What happened

23. This section sets out the key events in this case and is not intended to be a detailed chronology.
24. Mrs X’s child W is of primary school age. In late December 2021, Mrs X asked the Council to assess W for an EHC plan. The Council agreed to begin the assessment in late January 2022 and sent the request for EP advice the same day.
25. W’s attendance had begun to decline due to anxiety from September 2021 and by early April 2022, W stopped attending school all together. Mrs X told the Council W was unable to attend due to stress and anxiety. She told it she had a private EP’s report from January 2022, which said W’s needs were complex and they required more support. Mrs X said the School was not putting that support in place and had said it could not meet W’s needs.
26. The Council held a meeting in late April which looked at what support W and Mrs X needed. At that meeting, the School said it could not meet W’s needs without an EHC plan.
27. In late June 2022, W’s GP wrote to the Council to say the private EP that assessed W had said W’s behaviour was consistent with a diagnosis of Autism Spectrum Condition. The GP said attending school caused significant behavioural difficulties for W, which was affecting their wellbeing and making them distressed and dysregulated.
28. In late July, following the GP’s letter, the Council sent healthcare forms to the GP and W’s School for them to complete to inform its decision on whether to offer W alternative provision on illness grounds.
29. The Council received the EP advice for the EHC needs assessment in mid-August 2022 and issued W’s draft EHC plan in mid-September.
30. Around the same time, the Council decided the healthcare forms from the School and GP did not evidence W was out of education due to illness.
31. I asked the Council how it came to this conclusion. It told me the GP said the private EP had said W’s symptoms suggested Autism Spectrum Condition (ASC). It said this was not Autism Spectrum Disorder, which it said is associated with both neurological and psychological impacts. It said there was no evidence for a diagnosis of ASD or other long term condition that prevented W from attending school. It also said medical evidence should set out the child’s needs, advise how they can access education, how the school and Council should help the child and suggest a plan for the future. The GP’s letter and form did not include this information.
32. In mid-September, the EP who assessed W for the EHC plan contacted the School to discuss reintegrating W back into some type of formal education. After the discussion, the EP told the Council the headteacher had been “very cross and negative”. She said she thought the headteacher had mistakenly believed she was trying to arrange W’s reintegration back into the School.
33. In early October, W’s School contacted the Council to ask it to begin legal proceedings against Mrs X for W’s non-attendance. The Council replied to say “pursuing a prosecution against parents for non-attendance feels wrong and even discriminatory”. It said that because it had not yet issued W’s EHC plan naming a school, it was not fair to prosecute Mrs X because she could not do anything until she knew which school W was to move to.
34. The Council also told the School it needed to show it had followed the correct steps in offering W and Mrs X support before it would consider legal action. An internal email notes the Council's view that the School could not meet W’s needs and once it issued W’s EHC plan, they could move schools.
35. The Council issued W’s final EHC plan in mid-October. The plan noted W had previously been working to the expected levels but would likely need 1:1 support during re-integration back into school. The special educational provision set out in the plan was primarily strategies to help W manage their emotions, poor attention span and social interactions while in normal classes and at breaktimes. It also included limited provision of sessions targeted towards W’s needs including weekly sessions to build their social skills and weekly emotional literacy sessions 1:1 for 50 minutes.
36. Mrs X was satisfied with the provision and specialist placement named in the plan. W has since been attending the new school and has been building up attendance from one hour per week.
37. Mrs X told me the School did not send any work home with W. There was no educational provision from April to October 2022.

Findings

EHC assessment

38. The Council is responsible for ensuring ECH assessments are completed within the relevant timescales. It must take no longer than 20 weeks (5 months) from the date the assessment is requested to the date of the final plan. As part of the assessment, Educational Psychologists must send advice within six weeks of the request. The Council took almost nine months to complete W’s EHC assessment. It is clear the Council's assessment was impacted by the wait for an EP to become available to give advice. The EP sent the advice 28 weeks after the Council requested it.
39. While I accept there are justifiable reasons why the assessment took longer than it should have; the Ombudsman can make findings of fault where there is a failure to provide a service regardless of the reasons for that service failure. The delay in the EHC plan assessment was fault. I am pleased to see the Council is making efforts to resolve the issue, as set out on its website, although this will take some time. Because the Council has already taken suitable steps to decrease the wait time for EP advice, I have not made a further recommendation.
40. However, this delay caused Mrs X frustration because it meant efforts to move W to a new school were hampered. The Council agreed W needed to move to a new school but this was reliant on it consulting with schools on whether they could provide the provision in W’s EHC plan.
41. In addition, but for the delay, W would have received the SEN provision in the September 2022 plan at least four months earlier. Taking into account school holidays, this meant W missed out on one month of SEN provision. I have considered what recommendation to make to remedy this injustice and the injustice at paragraph 48 below.

Alternative Provision

42. The Council has a duty to arrange alternative provision if a child in its area is not receiving a suitable education due to illness or other reasons. This duty applies even when a child is on a school’s roll.
43. The Council was at fault in how it decided W’s absences were not due to illness. I conclude this for the following reasons.
• The Ombudsman's guidance on alternative provision is clear; councils should act without delay when a child is out of education. In Mrs X’s email to the Council in April 2022, when she told the Council W was no longer attending and that this was due to anxiety and stress. There is no evidence the Council considered at that point, whether W’s anxiety meant he could not attend school and therefore needed alternative provision.
• When deciding whether they owe the duty to offer alternative provision, councils should consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions. Mrs X mentioned an EP’s report in her April email but the Council did not contact the EP for information on W’s health needs or seek a copy of the report.
• When W’s GP contacted the Council in June, he said a private EP had suggested there was sufficient evidence for a diagnosis of ASC. The Council told me it did not consider W was out education on health grounds in part because they have ASC, not ASD. It said unlike ASC, ASD is associated with mental health problems. This is wrong. It is widely accepted that ASC and ASD are different terms for the same condition.
• In any event, the law on alternative provision does not include any requirement for a child to have a particular diagnosis. If the child is not receiving a suitable education due to illness, the duty applies.
• The Council also told me the letter and form W’s GP sent did not evidence W could not attend school due to ill health because they did not cover the required issues. It said this included how the School and Council should support W to get back into school and a plan for the future. However, there is no evidence the Council sought this information from W’s GP. The form it asked W’s GP to complete after receiving his letter did not prompt answers to any of the issues it felt were missing from the letter.
44. Between April and October 2022, the Council focused on whether W was out of education due to illness. However, there is no evidence the Council considered whether W was not accessing education for ‘other’ reasons. Caselaw has clarified ‘other’ covers circumstances where it is not reasonably possible or practical for the child to access the education.
45. The purpose of this criteria is to cover situations where a child is not getting a suitable full-time education but this is not due to illness, exclusion or a failure of the parent in their duties. In April 2022, W’s school said it could not meet W’s needs without an EHC plan. Records from October 2022 show the Council agreed the School could not meet W’s needs. It also did not feel the School had put in the appropriate support for W. In addition, it is apparent from the records that W’s School did not want W back in class; the headteacher became “very cross and negative” at what they believed was a suggestion W return to the School. Despite this, the Council did not consider if it was reasonably possible or practical for W to access the education at the School. This was fault.
46. When W’s School asked the Council to begin legal proceedings against Mrs X for W’s non-attendance in October, the Council said it did not have grounds to do that. It even noted that doing so could be considered discriminatory. If the Council felt it could not prosecute Mrs X for failing in her duty to ensure W had a suitable full time education and that W did not meet the ‘illness’ criteria, it should have considered if W was out of education for ‘other’ reasons and whether it should provide alternative provision. This was also fault.
47. On balance, had the Council properly considered the evidence available to it, it would have found it owed the alternative provision duty, whether for illness or ‘other’ reasons. Given many of W’s challenges accessing learning were due to the School’s environment, and that W has been more able to engage with education since moving to a new school, I am satisfied W would have been able to access any such alternative provision and may not have found reintegration to their new school as challenging.
48. Where the Ombudsman finds a child has not had alternative provision or special educational provision where they should have, we usually recommend a payment of between £200 and £600 per month. I have considered W’s age, the fact that they did not receive any education in school or at home, the provision in W’s EHC plan and whether W could have coped with full-time education. I have recommended a payment of £400 per month for lost alternative provision and £200 for the month of lost special educational provision. Taking into account school holidays, this totals £1800.
49. The fault identified in paragraphs 43, 45 and 46 also caused Mrs X avoidable distress.

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Agreed action

50. Within one month of the date of the date of my final decision, the Council will:
• apologise to Mrs X for the distress caused by its failure to provide W with alternative provision between April and October 2022. It should also apologise for the frustration caused by the delay in carrying out W’s EHC plan assessment;
• pay Mrs X £200 as a symbolic payment in recognition of the injustice she experienced;
• pay Mrs X £1800 for the benefit of W’s education. This is in recognition of the impact of the lost educational provision from April to October 2022 and the delayed SEN provision caused by its delay in carrying out the EHC plan assessment.
51. Within three months of the date of my final decision, the Council will:
• carry out training on the alternative provision duty for relevant staff. It will send the Ombudsman a copy of the proposed training before carrying it out; and
• review the form it uses to seeks information from medical professionals on a child’s health needs and how they impact on the child’s ability to access school. It should ensure the form includes prompts for the professional to send the information the Council considers it needs to evidence illness preventing education in school.
52. The Council should provide us with evidence it has complied with the above actions.

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Final decision

53. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

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Investigator's decision on behalf of the Ombudsman