Summary: Mrs X complained the Council did not assess her child D’s Education, Health, and Care needs properly, within statutory timescales. She also said it failed to provide D with suitable alternative education while they were out of school for over a year. There was fault by the Council which caused D to miss education, and caused avoidable distress to D and Mrs X. The Council agreed to apologise, ensure suitable education is in place for D without delay, and pay a financial remedy. It will also review relevant policies, and share a copy of our decision and issue reminders to relevant staff.

The complaint

1. Mrs X complains the Council:
• did not assess her child D’s Education, Health and Care (EHC) needs properly, within statutory timescales, when she asked it to in 2022;
• failed to provide D with suitable alternative education while they were out of school for over a year in 2022 and 2023; and
• did not properly communicate with the family about these issues or respond to their complaint in good time.
2. Mrs X says because of this D missed education and social contact for over a year which impacted on their mental health. She also says this impacted on her own mental health, causing significant stress. Mrs X wants the Council to:
• resolve the issues to ensure D receives a suitable education without delay;
• apologise, and recognise its failings and the impact this had on the family; and
• review its procedures to prevent this happening to other families in future.

Back to top

The Ombudsman’s role and powers

3. 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)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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.
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)

Back to top

How I considered this complaint

8. I considered:
• information provided by Mrs X and discussed the complaint with her;
• documentation and comments from the Council;
• relevant law and guidance; and
• the Ombudsman’s Guidance on Jurisdiction and Guidance on Remedies.
9. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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.

Back to top

What I found

Education, Health, and Care (EHC) plans

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 the arrangements that should be made to meet them.
12. 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 EHC plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. Councils should have regard to statutory guidance and only depart from it where there are good reasons. The guidance says:
1. a child’s parent or school has the right to ask a local authority to carry out an EHC needs assessment;
2. where a council receives a request for an assessment it must notify the family of its decision about whether it agrees to assess, and its reasons for this, within six weeks of receiving the request. If it agrees, this means it considers “it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan”.
3. the process of assessing needs and developing EHC plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable;
4. if a council decides following its assessment not to issue an EHC plan, it must inform the child’s parent within a maximum of 16 weeks from the request for an EHC needs assessment; and
5. there is a right of appeal to the SEND Tribunal against a council’s decision not to carry out an EHC needs assessment. This appeal right is only engaged once a decision not to assess has been made and sent to the family.
13. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is closely linked to the matters under appeal. This means that if a person disagrees with the placement named in an EHC plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).

Alternative educational provision for a child out of school

14. 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. We refer to this as section 19 or alternative education provision. (Education Act 1996, section 19).
15. 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))
16. The education provided by a 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)
17. The courts have considered the circumstances where the section 19 duty applies. Caselaw 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 the child 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)
18. 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])
19. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs, January 2013’ says:
• councils should provide education to those out of school as soon as it is clear they will be away from school for 15 days or more, whether consecutive or cumulative;
• 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;
• 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”;
• once parents have provided evidence from a consultant, councils should not unnecessarily demand continuing evidence from the consultant without good reason, even where a child has long term health problems. Evidence of the continuing additional health issues from the child’s GP should usually be sufficient. In cases where a council believes a consultant’s ongoing opinion is absolutely necessary, it should give parents sufficient time to contact the consultant to obtain the evidence.
20. DfE non-statutory guidance, ‘DfE Summary of responsibilities where a mental health issue is affecting attendance, February 2023’, says councils must not follow an inflexible policy of requiring medical evidence before making a decision about alternative education. Councils must look at the evidence for each individual case, even when there is no medical evidence, and make their own decision about alternative education.

The Council’s policy for children with medical or health needs

21. The Council has a Home and Hospital Tuition Service (HHTS), for children out of school for medical or health reasons. It describes this as a short-term, interim service which provides tuition in centres outside school, in small groups, or one-to-one either online or in a child’s home. The service aims to support the child’s reintegration into full-time education in a mainstream school or alternative setting.
22. The Council’s policy says children resident in Bromley are eligible for support from the HHTS if they “have a medical letter requesting support from the Home and Hospital Tuition Service as part of a medical care plan stating that the child is unable to attend school. The letter cannot be from a GP and must come from a member of the medical team currently working with the child, ideally this would be a consultant or in the case of mental health concerns a clinical psychologist or consultant psychiatrist.”
23. To apply for support from the HHTS, the Council’s policy says a child’s school should make a referral to the Council’s “gateway” process. Referrals are considered by the Council’s gateway panel which meets fortnightly during term time. The panel membership includes staff from the HHTS, the Council’s SEND service, and a representative from local children’s mental health services.

The Equality Act

24. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection in employment, education, the provision of goods and services, housing, transport, and the carrying out of public functions.
25. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. The ‘protected characteristics’ referred to in the Act are: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.
26. Organisations must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty. This duty requires all councils (and bodies acting on their behalf) to have due regard to the need to:
• eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Equality Act 2010;
• advance equality of opportunity between people who share a protected characteristic and those who do not; and
• foster good relations between people who share a protected characteristic and those who do not.
27. The broad purpose of the Public Sector Equality Duty is to consider equality and good relations into the day-to-day business and decision making of public authorities. It requires equality considerations to be reflected into the design of policies and the delivery of services, including internal policies, and for these issues to be kept under review.
28. We cannot decide if an organisation has breached the Equality Act. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act.

The Human Rights Act 1998

29. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. The Act requires all councils, and other bodies carrying out public functions, to respect and protect individuals’ rights.
30. The First Protocol, Article 2 of the Human Rights Act says every person is entitled to an effective education.
31. Article 14 of the Human Rights Act is about discrimination. Discrimination occurs when an individual is treated less favourably than another person in a similar situation and this treatment cannot be objectively and reasonably justified. Discrimination can also occur if an individual is disadvantaged by being treated the same as another person when their circumstances are different, for example, if they are disabled.
32. The Ombudsman’s remit does not extend to making decisions on whether or not a council has breached the Human Rights Act. This can only be done by the courts. But we can decide whether a council has had due regard to an individual’s human rights in its treatment of them, as part of our consideration of a complaint. In practical terms, councils will often be able to show they are compliant with the Human Rights Act if:
• they can show they have considered the impact their decisions will have on the individual(s) affected; and
• there is a process for decisions to be challenged by a review or appeal.

The Council’s complaints procedure

33. The Council’s complaints procedure has one stage. It says it will acknowledge the complaint within 3 working days. The manager of the relevant service will investigate and reply within 20 working days or will let the complainant know if this will take longer.

What happened

34. In the 2021/2022 school year, D was in year 8. In May 2022 the Council attended a meeting at D’s school with Mrs X, at which point it became aware there were issues with D’s attendance. D missed most of the final term of year 8 and attended around half of the year’s lessons overall.
35. At the start of year 9, in September 2021, D attended school briefly but quickly could not attend due to anxiety. D’s GP referred them for support from local mental health services. Mrs X told the Council and the school she thought D needed a “comprehensive needs analysis”. She had already arranged private assessments by a clinical psychologist and an educational psychologist. She told the school and Council D had been diagnosed with autism.
36. At the end of September 2022, following a further meeting where the Council was present, it was agreed D’s timetable at school should be reduced to try to gradually transition them back into school. It was also agreed the school would make a referral to the Council’s “gateway” process for access to the Home and Hospital Tuition Service (HHTS).
37. In early-October 2022, Mrs X asked the Council to assess D’s EHC needs with a view to securing them an EHC plan.
38. In mid-October 2022, the school made a referral for D to the Council’s gateway process. The gateway panel considered this in early-November. It decided the Council could not provide alternative education to D because there was a lack of medical evidence about why they could not attend school. Mrs X sent the Council reports of the private diagnostic assessments she had arranged for D and asked if it could review its decision. The Council told Mrs X D did not meet the threshold for its HHTS without a medical letter stating they could not attend school. It also told her it did not accept GP letters as evidence.
39. At the same time as the gateway panel outcome, the Council told Mrs X it agreed to carry out an EHC needs assessment for D.
40. At the end of January 2023, the Council had not completed its EHC needs assessment, so had not made its decision about whether it would issue an EHC plan within the required statutory 16-week timescale. It had also failed to respond to several chasers from Mrs X about arranging alternative education for D while they were out of school. Mrs X therefore made a complaint to the Council. It said it would respond within 4 weeks but did not do this.
41. In March 2023, D’s school made a further referral to the gateway process. The gateway panel decided Council staff from the HHTS should visit D and Mrs X at home before further panel consideration. The HHTS staff recorded that Mrs X told them:
• D was diagnosed with autism in August 2022. Mrs X had asked the Council to assess D for an EHC plan but this was delayed significantly;
• Mrs X had previously spoken to local mental health services about D following a referral from D’s GP at the start of the school year. D was now on a waiting list for private counselling; and
• D could not attend school and Mrs X was concerned about the education they had already missed. She was concerned this would continue into year 10 if no support was provided to increase D’s confidence and help them catch up. Mrs X felt the best way forwards would be for D to have some tuition at home.
42. Also in March 2023, the Council’s SEND team responded to the part of Mrs X’s complaint about the EHC needs assessment. It apologised for the delays and updated her about where the assessment was up to.
43. In late-March 2023, the gateway panel considered D’s case further following the home visit from HHTS and decided it still did not have enough medical evidence to grant access to the HHTS. The Council told Mrs X the panel’s decision. Mrs X complained to the Council again that it had not responded to her complaint in full, and D was still out of school with no alternative education in place. Shortly afterwards, the Council issued its final response to Mrs X’s complaint. It apologised for delays in the EHC needs assessment process, and the complaint process. It said it would decide about the EHC plan soon and reiterated its position that D could not access its HHTS without further medical evidence.
44. Mrs X came to the Ombudsman in April 2023. A week later the Council told Mrs X it had decided it would not issue D with an EHC plan. This was 29 weeks after Mrs X specifically asked the Council to assess D’s EHC needs, and 32 weeks after she first told the Council she thought D needed a “comprehensive needs analysis”.
45. In June 2023, Mrs X appealed to the SEND Tribunal about the Council’s decision not to issue D with an EHC plan.

My findings

What I have and have not investigated

46. Mrs X appealed to the SEND Tribunal about the Council’s decision not to issue D with an EHC plan. The SEND Tribunal is an independent expert body whose decisions are binding on the Council. The law says we cannot investigate an issue which has already been the subject of a tribunal appeal.
47. The Ombudsman also cannot investigate any matters which are closely linked to issues which are the subject of a tribunal appeal. Therefore, we cannot investigate the Council’s EHC assessment process which led to its decision to not issue a plan. This means we cannot look at how the Council considered Mrs X’s requests for it to seek specific professional advice as part of its assessment.
48. Mrs X says D is out of school due to anxiety, caused by their special educational needs not being met in school. Where a child is out of school because the education available to them is not meeting their needs, we cannot seek a remedy for any missed education after an appealable decision not to issue an EHC plan. The issue appealed about is whether D needs an EHC plan to support their special educational needs and ensure suitable education is in place, which is closely linked to the missed education. This means I cannot consider or provide a remedy for education D missed since the Council made its decision not to issue a plan, in late-April 2023.

Education, Health, and Care needs assessment

49. As explained above, we cannot consider whether there was fault in how the Council carried out its EHC needs assessment for D.
50. However, there were significant delays in the process. The Council made its decision not to issue a plan 29 weeks after Mrs X specifically asked it to assess D’s needs, and 32 weeks after she first told it D needed a “comprehensive needs analysis”. This is significantly longer than the 16 weeks required by law, which was fault. I cannot say, even on the balance of probabilities, what the outcome of Mrs X’s SEND Tribunal appeal will be. I therefore cannot say whether D missed SEN support because of the assessment delay, or what level of support this may have been. However, I am satisfied the delay caused the family distress, and frustrated their right to appeal to the SEND Tribunal. The Council should remedy the injustice caused.

The Council’s gateway process and the Equality Act 2010

51. As described at paragraph 18, it was for the Council to decide whether D’s health needs prevented them from attending school, and to decide what weight to give medical evidence. However, the Council’s gateway process sets rigid evidence requirements for access to its HHTS, as described at paragraph 22. As described at paragraph 19, statutory guidance says where specific medical evidence is not available, councils should consider other options to ensure minimal delay in arranging provision. It also says councils should not unnecessarily demand continuing evidence from a consultant and “evidence of the continuing additional health issues from the child’s GP should usually be sufficient.” The guidance referred to at paragraph 20 says “councils must not follow an inflexible policy of requiring medical evidence before making their decision about alternative education. Councils must look at the evidence for each individual case, even when there is no medical evidence, and make their own decision about alternative education.”
52. The guidance at paragraph 20 was not published at the time of the November 2022 gateway panel, and had just been published at the time of the March 2023 panels. Therefore, I would not expect the Council to have had regard to it in this case. However, in general, the Ombudsman considers a council should not adopt a blanket approach or policy that prevents it from considering the circumstances of a particular case. We may find fault in the actions of councils that ‘fetter their discretion’ in this way. At the time of our decision, the Council’s policy for children with medical or health needs is still in place. The Council’s policy does not allow it to consider discretion about evidence requirements in any case, and its response to my enquiries confirmed its position that it does not consider discretion. Also, the evidence shows that where the Council decides it is not suitable to allow a child access to its HHTS, it does not consider any alternative. This shows the Council is unaware of its statutory duty to ensure alternative education is in place for all children out of school. The Council’s rigid evidence requirements for access to its HHTS, and the fact it considers no alternative for children it does not allow to access the HHTS, demonstrates a fundamental misunderstanding of its section 19 duties. This was fault.
53. The Council said it considers gateway applications for every child “in a fair and equitable way” and believes the threshold it sets for medical evidence is vital to ensure this. However, the Council’s failure to allow for discretion in its policy demonstrates it failed to take account of its duties under the Equality Act in its design of the policy. This is because it did not consider whether a blanket application of these evidence requirements may put certain groups of people sharing a protected characteristic at a particular disadvantage. For example, D has autism, but the Council treated D’s gateway application in the same way it would any child out of school for any medical reason, even though D’s circumstances may have been different because they are disabled. The Council provided no evidence, such as an Equality Impact Assessment, to show it gave due regard to reflecting equality considerations in the design of its gateway policies and processes. This was fault.
54. In D’s case, the Council’s policy meant it followed strict evidence requirements without considering D’s individual circumstances, or their disability. It told Mrs X from the point of the first gateway panel consideration that it did not accept GP letters as a blanket rule. In early 2023 it arranged for staff from the HHTS to visit the family at home and Mrs X provided specific information about D’s individual circumstances. However, there was no evidence the panel then properly considered this information. It did not consider whether it should exercise discretion around what evidence it needed. This was fault. Also, this demonstrates the Council failed to properly take account of its duties under the Equality Act in how it considered D’s gateway application, as a person who has a disability.
55. I cannot say what the Council would have decided had it considered D’s gateway application properly. It may have still decided it was not suitable for D to access the HHTS. However, if the HHTS was not suitable, the Council should have sought to arrange an alternative. It must arrange suitable alternative education when a child is out of school for 15 days or more, for any reason.
56. The Council knew D was out of school from May 2022 onwards. However, it failed to arrange any alternative education. Had the Council considered education was available to D at school was suitable and “reasonably practicable” for them to access, I would have expected it to require D to attend, as it had powers to do so. It did not do this which suggests it did not consider D to be out of school without good reason. The Council’s response to our enquiries showed it considered the duty to provide alternative education lay with D’s school, but this is not correct. The section 19 duty lies with the Council. I am satisfied the Council failed to properly consider its duties to arrange alternative education. This was fault.
57. As described at paragraph 48, I cannot consider any education D missed after the Council decided it would not issue an EHC plan, in late-April 2023. The Council should provide a remedy for the three terms of education D missed from May 2022 to April 2023. This lack of suitable education had a significant personal impact on both D, and Mrs X, and caused them distress. The Council should remedy the injustice caused.

The Human Rights Act

58. I am not satisfied the Council had due regard to Article 14 of the Human Rights Act in its treatment of D. This is because the Council treated D’s gateway application in the same way it would any child out of school for any medical reason, even though their circumstances may have been different because they are disabled. This then impacted on D’s right to an effective education under The First Protocol Article 2 of the Human Rights Act, which the Council also failed to have regard to. It did not properly meet its duties to ensure D had an effective education in place. It did not properly consider the impact its decisions would have on them. This was fault.

Communication and complaint handling

59. After the November 2022 gateway panel decision, Mrs X chased the Council repeatedly about D being out of school and the delays in the EHC needs assessment. The Council did not respond to any of her emails, so she made a complaint in late-January 2023. The Council acknowledged the complaint but did not provide a full response until the end of March 2023, five weeks later than is set out in its complaints procedure. The Council’s failure to respond to Mrs X’s many communications about the issues, and the delays in the complaint process, were fault, which caused Mrs X avoidable distress and frustration. The Council apologised to Mrs X for the delay in its complaints procedure. It should provide a further remedy for the distress caused by its repeated failure to communicate properly.

The Ombudsman’s previous findings of fault by the Council

60. In October 2022, case ref 22001138, the Council agreed to remind all its SEN case officers and managers of the importance of EHC process statutory timescales. I have found the Council is still not meeting statutory timescales.
61. In June 2022, case ref 21011678, the Council agreed to review its alternative provision policy and procedure to ensure it promptly secured alternative provision for children out of school. In response to my enquiries, the Council said it completed this review but decided its policy was suitable so made no changes. I have found fault with the Council’s policy for children with medical or health needs and recommended the Council amends this, so it is in line with relevant legislation and statutory guidance.

Back to top

Agreed action

62. As set out in our Guidance on Remedies, where we find fault has resulted in loss of educational provision, we usually recommend a payment of £900 to £2,400 a term to recognise the impact of that loss. The Council will provide a remedy for the three terms of education D missed from May 2022 to April 2023.
63. I consider a remedy of £1,600 for each term of missed education to be appropriate. In deciding this I considered that during this period, D was in years 8 and 9 of secondary school. We do not consider this to be a particularly significant period in a child’s school career, as we would say for the first year of primary or secondary school. I also considered that D received no suitable education at all for this period.
64. Within one month of our final decision, the Council will:
1. apologise to the family for the faults identified and the impact those faults had;
2. ensure suitable education is in place for D for the 2023/2024 school year, within school or otherwise if they cannot attend school; and
3. pay the family a total of £5,900 comprising of:
1. £4,800 to recognise the three terms of suitable education D missed from May 2022 to April 2023;
2. £800 to recognise the avoidable distress caused to Mrs X, including that her right to appeal the Council’s decision not to issue an EHC plan was frustrated due to Council delays; and
3. £300 to recognise the avoidable distress caused to D.
65. Within three months of our final decision, the Council will:
1. review and amend its policy for children with medical or health needs. It will ensure that:
1. as part of the review, it completes an Equalities Impact Assessment for the policy, and gives due regard to reflecting equality considerations in the design of its gateway policies and processes;
2. the amended policy allows it to consider discretion about medical evidence requirements on a case-by-case basis; and
3. the amended policy makes clear that where a child is not approved for support from the Council’s Home and Hospital Tuition Service, and remains out of school, the Council must arrange other suitable alternative education, in line with its section 19 duty.
2. share a copy of our final decision with all staff across its teams that deal with children with SEN, or children out of school/ with attendance issues. It will draw their attention to the:
1. Council’s duties to provide suitable alternative education for a child out of school for any reason under section 19 of the Education Act 1996;
2. Council’s duties under the Equality Act 2010 and the Public Sector Equality Duty;
3. Council’s duties under the Human Rights Act 1998 to give due regard to respecting and protecting an individual’s rights;
4. requirement to comply with statutory timescales for carrying out EHC needs assessments;
5. importance of responding to queries in good time and keeping families updated; and
6. complaint handling timescales set out in the Council’s complaints procedure.
66. The Council will provide us with evidence it has complied with the above actions.

Back to top

Final decision

67. I have completed my investigation. There was fault by the Council which caused D to miss education. It also caused avoidable distress for D and Mrs X. The Council agreed to our recommendations to remedy this injustice, review relevant policies, and share a copy of our decision and issue reminders to relevant staff.

Back to top

Investigator's decision on behalf of the Ombudsman