Summary: Mrs X complains about the Council’s failure to provide adequate and timely alternative education provision for her Child, Child Y, when they were unable to attend school from January to July 2023. The Council was at fault for not acting sooner when Mrs X alerted it in early November 2022 of Child Y’s significantly decreased school attendance. The Council delayed responding to Mrs X’s request for and then completion of an early Education, Health and Care (EHC) Plan review for Child Y. The Council has agreed to apologise and make payments to Mrs X and Child Y for the injustice caused by these faults. It will also review its procedures for schools in its area to highlight any pupils who fail to attend school regularly.

The complaint

1. Mrs X complains about the Council’s failure to provide adequate and timely alternative education provision for her child, Child Y, when they were unable to attend school from January to July 2023. Mrs X says the Council has provided inconsistent information about timescales and unnecessarily delay the annual review process for Child Y’s Education, Health and Care (EHC) Plan. Mrs X also complains about the Council’s initial refusal to accept the advice and recommendations in a private Occupational Therapist’s report and request for a smaller education placement setting to meet Child Y’s needs. The Council’s mishandling has caused significant injustice to Child Y and their family.

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The Ombudsman’s role and powers

2. 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.
3. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
6. 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)

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How I considered this complaint

7. I have spoken to Mrs X and considered the information she has provided in support of her concerns.
8. I have considered the information the Council has provided in response to my enquiries.
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.

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What I found

Relevant guidance

10. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or council can do this.
11. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
12. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

13. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review. There may also be situations when an emergency review is required for example when a placement is at risk of or has broken down.
14. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
15. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
16. Where the 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. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.
17. Section 436 of the Education Act 1996 (‘the Act’) requires councils to identify children not receiving an education.  
18. Where a child’s attendance at school drops below a certain level, it is likely a council’s Education Welfare Officer (EWO) will become involved after a referral from the school. EWOs have various responsibilities. These are typically a mix of providing advice and support to schools, parents and children, while also leading a council’s investigation and enforcement of the law around school attendance.
19. 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.

What happened

20. This timeline of key events does not include everything that happened.
21. Child Y has a diagnosis of Autistic Spectrum Disorder (ASD) with a profile of Pathological Deman Avoidance (PDA). Child Y has received support at school through and Education, Health and Care (EHC) Plan since at least 2021. Child Y transferred from primary to secondary school in September 2022.
22. In early November 2022, Mrs X emailed the Council’s SEN Team to alert it that Child Y had been struggling to attend school. She asked for a meeting to discuss this with the Council, with a view to completing an early review of Child Y’s EHC Plan. Following a chaser email from Mrs X in early December 2022, the Council advised her to get back in touch if matters remained unresolved after the meeting with Child Y’s school.
23. In late January 2023, Mrs X contacted the Council again to advise Child Y was continuing to struggle with school attendance. Mrs X said she felt this was because the school had not implemented the support stated in Child Y’s EHC Plan. Mrs X asked the Council again for an early review of Child Y’s EHC Plan as she felt they might benefit from a smaller education placement.
24. An annual review meeting for Child Y’s EHC Plan took place on 15 March 2023. Mrs X says all professionals at the meeting agreed Child Y needed a smaller education placement to better meet their needs. In the meantime, the SEN Caseworker confirmed they would put Child Y’s case to Panel to request further funding for their existing school to secure alternative education provision.
25. Child Y’s school provided further information to the Council for Panel, which met to consider the request for additional funding at the end of March 2023. The Panel concluded the school had not demonstrated how the proposed package of support out of school reflected the provision in Child Y’s EHC Plan. The Panel also felt the school needed a plan to help reintegrate Child Y back to school, with support from the Council’s Emotional Based School Avoidance (EBSA) Officer.
26. Just before the Panel hearing, Mrs X made a stage one complaint to the Council about its handling. Mrs X complained about the Council’s failure to secure alternative education provision for Child Y and provide responses when promised and providing inconsistent deadlines for Panel submissions.
27. The Council responded to Mrs X’s complaint on 5 April 2023. It apologised for the confusion caused by providing unclear information about Panel submission deadlines. The Council also provided further clarification about the Panel’s decision to decline the request for further alternative provision funding.
28. Mrs X remained dissatisfied with the Council’s response and asked to escalate her complaint to stage two. Mrs X continued to raise concerns about the education Child Y had already missed from being absent from school for so long. Mrs X also complained about the Council’s stance to no longer accept the recommendations and advice in an Occupational Therapist’s (OT) report she had privately commissioned for Child Y’s previous EHC Plan.
29. Shortly after this, Child Y’s school sent Mrs X a letter about her child’s attendance. The school also made a referral to the Council’s Children Missing in Education (CME) Team.
30. Mrs X contacted the Council again in late April 2023 to ask for its decision notice following the early review of Child Y’s EHC Plan. Mrs X pointed out the statutory deadline for the Council to issue this decision notice had passed on 12 April 2023.
31. The Council responded to Mrs X’s stage two complaint on 18 May 2023. It apologised for the delay in completing the amendment notice for Child Y’s EHC Plan following early review.
32. The Council issued the amendment notice and revised EHC Plan for Child Y to Mrs X on 12 June 2023. This named Mrs X’s preferred school placement and Child Y started attending that school on 19 June 2023.
33. The Council sent Mrs X a further complaint response on 27 June 2023. The Council explained the challenges it faced with obtaining professional reports for EHC Plan reviews in time to meet statutory timescales and the reasons why privately commissioned reports were difficult to implement without agreement from the NHS, who typically delivered the support recommended. Mrs X requested escalation of her complaint to stage three as she felt the Council had not answered her original concerns.
34. At the end of July 2023, Mrs X brought her complaints about the Council to us.
35. The Council sent Mrs X its stage three complaint response on 15 August 2023. It apologised for not stepping in sooner to make alternative education provision available to Child Y, when it became aware their school was not doing this. It also apologised for not having better communication with Mrs X and for not initially including the privately commissioned OT report in the submission to Panel.

Analysis

36. We cannot consider the role of Child Y’s previous school as schools are not within our jurisdiction. This investigation is limited to the consideration of the Council’s role.
37. The law is clear that where a school does not make appropriate arrangements for a child who is not receiving a suitable education through illness or ‘otherwise’, the Council must intervene and make such arrangements itself. The duty arises after a child as missed 15 days of education either consecutively or cumulatively.
38. Based on the email evidence Mrs X has provided, the Council has been aware of Child Y’s difficulties with attending school since early November 2022. Since then, the Council has had at least three opportunities to consider and respond to Mrs X’s complaints about its handling of Child Y’s education provision. Only on the last occasion in late August 2023 did the Council acknowledge that it should have done more to step in when it was alerted Child Y was not receiving the SEN provision set out in section F of their EHC Plan. While the Council may not have known the extent of Child Y’s difficulties with school attendance in early November 2022, it appears to have made no effort to explore these issues further with Mrs X despite her requests for help. The Council’s failure in this respect was to be fault which caused Mrs X considerable uncertainty and distress. She has no way of now knowing whether earlier intervention by the Council could have prevented Child Y’s prolonged absence from school. This is uncertainty the Council should remedy.
39. In its complaint responses, the Council has advised Mrs X that it has ‘comfortably’ met the statutory timescales for review of Child Y’s EHC Plan. Based on the evidence I have seen I would disagree with the Council’s assertion. Mrs X indicated her wish for an early EHC Plan review on 7 November 2022 and again on 23 January 2023. While I accept the Council’s comment to my draft decision that it was under no legal obligation to complete an early review of Child Y’s EHC Plan, I am concerned it did not at the very least respond to nor explain its reasons for declining Mrs X’s requests in November 2022 and January 2023.
40. It took until 15 March 2023 for the EHC Plan review meeting to take place. Further delay of two months in issuing the amendment notice and activating Mrs X’s right of appeal to the SEND Tribunal also added to the existing delay. Throughout this time, Mrs X made repeated requests to the Council to issue its decision notice and even had to resort to the initial stages of legal action in an effort to progress matters.
41. The length of time the Council took to arrange the early review and then issue the amendment notice to Mrs X was fault and avoidable. The Council’s apology and explanation of the work it is doing to improve in its stage three complaint response to Mrs X does not in my view appropriately remedy the injustice caused. I welcome the Council’s acceptance of my recommendation to address this at the end of this statement.
42. The Council’s failure to intervene sooner has meant that, save for the odd day of alternative provision, Child Y missed out on just over two terms’ worth of SEN provision: from 7 November 2022 to 16 June 2023. This is fault which the Council has failed to appropriately remedy. I have used out Guidance on Remedies to determine the level of remedy payment I have recommended the Council makes for missed SEN provision in this case. Our guidance for fault resulting in a loss of education provision recommends a payment of between £900 and £2,400 per school term depending on the impact and any special educational provision the child might require. I consider £1,250 per term the appropriate amount based on Child Y’s circumstances.
43. Since November 2022, Mrs X has been in contact with the Council trying to arrange suitable education for Child Y. Mrs X has told me she has had to give up work to look after and support Child Y while they have not been attending school. The Council’s failure to act has caused Mrs X distress, frustration and inconvenience through needing to follow up with the Council on repeated occasions.
44. A symbolic payment for distress, inconvenience and frustration is often a moderate sum and is not intended to compensate or reimburse losses in the same way as a court might. Given the circumstances in Mrs X and Child Y’s case, I consider a symbolic payment of £500 to Mrs X is appropriate to reflect the injustice caused to her by the Council’s fault.
45. I understand Mrs X’s frustration around the Council’s poor communication, particularly regarding Panel submission deadlines and the use of private commissioned professional reports. I do not consider further remedial action is required for this element of Mrs X’s complaint, given the explanations and apologies the Council has already conveyed to Mrs X in its stage three complaint response.

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Agreed action

Remedy for personal injustice

46. Within one month of my final decision, the Council has agreed to:

• make a written apology to Mrs X and Child Y for the injustice caused by the faults identified in this decision statement. The apology to Child Y should only be provided if Mrs X feels this is appropriate and in a format that best suits Child Y’s needs. The apologies should also be in line with our Guidance on Remedies, which set out our expectations of councils when it comes to delivering meaningful apologies;
• make a symbolic payment of £500 to Mrs X in recognition of the distress, uncertainty, time and trouble caused by the Council’s faults in its handling of Child Y’s SEN provision, annual review delay and poor communication and complaint responses; and,
• make a payment of £2,500 to Mrs X for the benefit of Child Y for missed SEN provision from 7 November 2022 to 16 June 2023.

Service improvements

47. Within three months of my final decision, the Council has agreed to review and if needed amend the policy/mechanism it has in place for how schools inform it of the details of pupils who fail to attend school regularly, or have missed ten school days or more, as outlined in the statutory guidance, to ensure it is receiving timely and suitable information about children out of education from schools;
48. The Council should provide us with evidence it has complied with the above actions.
49. Over the year, we have issued multiple decisions highlighting failings by the Council’s SEN Service. Since April 2023, we issued decisions where the Council agreed the following recommendations to:

• issue a briefing to ensure staff are aware of the Councils statutory obligation and those of the school as detailed in the Education Act 1996 to ensure a child receives a suitable education if they are unable to attend school.
• review its procedures and provide guidance to its staff to ensure decisions made to maintain, amend or cease EHC Plans following reviews are issued within the statutory timescales.
• review its policies and procedures to ensure the Council retains oversight and responsibility for its duties to children unable to attend school.
• share the Ombudsman’s guidance “Out of school, out of sight” with those officers dealing with Special Educational Needs cases. This will help to ensure officers are clear on the Council’s duties to organise alternative education provision under Section 19 of the Education Act 1996 and to review the education of those on a part-time timetable.
• remind relevant Special Educational Needs team officers of the need to communicate in a timely manner. This will help to ensure that parents and carers are adequately aware of progress being made on their cases.

50. Those recommendations are all relevant to this case and there seems little benefit in repeating them here. However, this case does represent a repetition of the fault with have found in several other cases and Council must continue to implement the recommended actions to ensure it complies with its statutory duties going forward.

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Final decision

51. I have completed my investigation and found fault with the Council. This fault has caused Child Y and Mrs X injustice and the Council has agreed to complete the recommended action to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman