Summary: Mr X complained the Council failed to provide his son suitable alternative education between March and November 2022. Mr X says teaching his son at home caused mental and physical stress and put a strain on their relationship. The Council failed to meet its duty to provide alternative education, saying it was the responsibility of the school. A remedy for the loss of education provision is agreed.

The complaint

1. Mr X complains the Council failed to provide suitable alternative education for his son between March and November 2022.
2. Mr X says having to teach his son at home caused mental and physical stress and put a strain on their relationship.

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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 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)
4. 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)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

6. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and invited their comments.

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What I found

Arrangements for reviewing an EHC Plan

7. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
8. 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. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
9. 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 within four weeks of the annual review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
10. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the 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. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
11. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.

Delay in the annual review

12. Mr X’s son, B, stopped attending school in March 2022. It appears this was a mutual decision between the school and Mr X. A review of B’s EHC plan took place on 29 April. The Council proposed to amend the plan but did not write to Mr X within four weeks to notify him of the proposed changes. It did not issue a draft plan until 26 October and the final amended plan was then issued on 18 November 2022.
13. The whole process should take 12 weeks but in this case it took 29 weeks. This delay meant Mr X’s right of appeal was delayed. Mr X was not in agreement with the issued amended plan and so exercised his right of appeal immediately. Mr X’s appeal was due to be held in February 2024 but for reasons I will explain below, Mr X withdrew the appeal in July 2023.
14. The time taken to complete the review of B’s EHC plan was outside the statutory timescale of 12 weeks and so is fault. This caused uncertainty and delayed Mr X’s right of appeal. The Council has already made a payment to Mr X and B of £800 to acknowledge the distress and uncertainty in respect of the delay. The payment also recognised Mr X’s time and trouble in pursuing this matter. I consider this is a suitable remedy for the injustice resulting from the fault.

Failure to provide alternative education

15. 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.
16. 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 sight? published July 2022
17. 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 (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 when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible;

18. Where councils arrange for schools or other bodies to carry out functions on their behalf, the council remains responsible. Therefore, it retains oversight and control to ensure duties are properly fulfilled.
19. As detailed above, a review of B’s EHC plan was carried out in April and as part of that process the Council was aware he was not attending school. I do not know for certain when the Council was first aware that B was absent from school but this will have been clear when the review meeting was held at the end of April. The Council then had a duty to ensure B was receiving suitable full time education.
20. After B stopped attending school, Mr X provided homeschooling. This was supported by the school with it providing some text books and regular phone calls from the teaching assistant. Mr X says that no marking was carried out and there was no direct contact with teachers. When I spoke to Mr X he told me that he was a single parent with four sons. He is retired but found it increasingly difficult to homeschool and worried that his son was missing out by not attending school.
21. In July, Mr X contacted both the school and the Council raising concerns about the current situation and also about what would happen when the new school year began in September. Mr X was concerned that B was isolated from his peer group due to being home schooled. In September Mr X emailed the Council asking it to provide funding for transport to enable B to attend activities with his peers. Mr X also said that B was not receiving any alternative education provision. The Council responded saying that B remained on roll at the previous school and that all provision should be made and funded by the school, though the school could request additional funding.
22. Mr X made a formal complaint to the Council in July. He complained about the delay in completing the review of the EHC plan and said that home schooling was a huge burden without any financial or physical support from the Council. The Council apologised for the delay and said the case would be discussed at panel on 10 August. It is my understanding this did not happen and so Mr X complained again.
23. In a complaint response dated 10 November, the Council said B remained on roll and a school place was available. It said it had continued to fund this for B and the school has a duty to provide education to him. It also said that it understood work had been sent home and that alternative provision discussed as a way forward whilst a more suitable school place secured.

Analysis

24. I am considering the period March to November 2022. This is the period when B stopped attending school until Mr X exercised his right of appeal. I am aware that B did not return to school until June 2023 and that Mr X withdrew the appeal shortly after in July 2023. However, the Ombudsman’s jurisdiction prevents me from considering matters once the right of appeal is used.
25. The responsibility for providing suitable education lies with the Council, even when a student remains on roll. While it can delegate this responsibility to a school to carry out on its behalf, it would need to show how it did this. I have not seen evidence to persuade me the Council correctly delegated its section 19 responsibility in this case. In its complaint response dated November 2022, it said it was the school’s responsibility. It also mentioned the current provision in tentative language which suggests it had not properly reviewed the education provided to B and taken a view that suitable full time education was being provided. Its reference to looking at alternative provision until a more suitable placement is found, also supports my view that the Council did not meet its section 19 duty.
26. Mr X was home schooling B but he found this increasingly difficult and even described it as a burden at one point. There is evidence to show that he was asking for help from at least July 2022. I have not seen anything to show the Council did anything other than to refer Mr X back to the school. Only after Mr X appealed in November 2022 did the Council put alternative education provision in place.
27. The failure to meet its section 19 duty from April to November 2022 is fault. While Mr X did his best to home school B, this was not his choice and he was keen for B to return to an appropriate school placement. The injustice resulting from this lack of suitable education provision should be remedied by way of a payment. The Ombudsman’s guidance on remedies suggests a payment of between £900 and £2,400 per term. In reaching a view on what is a suitable amount, I have taken into consideration that some provision was provided via the school and that this applied to less than two full terms.

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Agreed action

28. To remedy the injustice caused by the fault identified in this case, the Council will, within one month of my final decision, make a payment of £1,500 to be used for the benefit of B.
29. The Council should provide us with evidence it has complied with the above actions.
30. I have decided not to recommend any service improvements at this time. The Ombudsman has made decisions on similar complaints and recommended action which the Council has agreed to complete. In August 2023 it agreed to carry out a review of procedures and provide training to staff responsible for school attendance to ensure they are aware of the Council’s section 19 duty even when a child remains on roll at school. It is due to complete this by October 2023.

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Final decision

31. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman