• The complaint
• The Ombudsman’s role and powers
• What I have and have not investigated
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Ms X complained the Council failed to provide suitable alternative provision of education for her child since April 2023. We found fault with the Council for delays in production of Ms X’s child’s Education Health and Care Plan and for failing to provide suitable education. The Council offered to pay Ms X £6,000 for the missed education and £250 for the avoidable time and trouble Ms X experienced. We are satisfied this offer suitability reflects the fault in this matter and have ended our investigation because the Council agreed a suitable remedy.

The complaint

1. Ms X complained the Council failed to provide suitable alternative provision of education for her child since April 2023 when she stopped attending mainstream education.

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The Ombudsman’s role and powers

2. 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)
3. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
4. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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)
6. 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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What I have and have not investigated

7. I have investigated Ms X’s complaint until 10 November 2023. This is the date the Council produced the Final Education Health and Care Plan for Ms X’s child. Once the Council issued the Final Education Health and Care Plan, Ms X gained an appeal right to the Tribunal. Ms X engaged her appeal right in January 2024.
8. Ms X appealed Sections B, F and I of the Education Health and Care Plan to the Tribunal. This appeal included an appeal about the educational placement for Ms X’s child. When a person appeals a matter to the Tribunal, the Ombudsman cannot investigate the same matter. This restriction on our investigation starts from the date the person gained their appeal right. Since Ms X gained an appeal right on 10 November 2023, and used this appeal right to appeal the educational placement for her child, we cannot investigate Ms X’s child’s education since 10 November 2023.

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How I considered this complaint

9. 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.
10. Both Ms X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

EHC Plans

Rules and regulations

11. A child with special educational needs may have an Education, Health and Care (EHC) Plan. An EHC Plan describes the child’s special educational needs and the provision required 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. It says the following: 
13.  

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• 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. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply);  

14. Once the Council completes the EHC Plan 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.
15. The Ombudsman can look at any delay in the assessment and creation of an EHC Plan as well as any failure by the Council to deliver the provision within an EHC Plan.

What happened

16. On 3 May 2023, Ms X put in an EHC Plan Needs Assessment form to the Council for her child, who I shall refer to as Y.
17. The Council’s Special Educational Needs (SEN) caseworker recommended assessment of Y for an EHC Plan on 7 June 2023. The Council subsequently agreed to carry out an assessment of Y on 13 June 2023.
18. The Council issued draft decisions for Y on 30 August 2023 and 26 September 2023.
19. Ms X liaised with the Council about the draft decisions and raised concerns about the suitability of mainstream education for Y.
20. On 10 November 2023, The Council told Ms X it would be naming Y’s current school on the final EHC Plan and putting in place a reintegration plan for Y. The Council issued the Final EHC Plan for Y on the same date naming Y’s current school in Section I of the EHC Plan.
21. Ms X appealed the Final EHC Plan to the tribunal on 10 January 2024. Ms X appealed Sections B, F and I of the Final EHC Plan.

Analysis

22. The Council had six weeks from Ms X’s request on 3 May 2023 to decide whether to complete and EHC Needs assessment for Y. This meant the Council had until 15 June 2023, when considering bank holidays.
23. The Council decided to assess Y on 13 June 2023. The Council made this decision in the statutory timescale, I do not find fault.
24. The Council had 20 weeks from the date of Ms X’s request for an EHC Plan to issue the Final EHC Plan for Y. This meant the Council had until 25 September 2023 to issue the Final EHC Plan for Y, when considering bank holidays. The Council failed to issue the Final EHC Plan until 10 November 2023. This delay of 7 weeks outside the statutory timescales in issuing the Final EHC Plan was fault. I have addressed the impact of this fault in paragraph 56.
25. The contents of Y’s EHC Plan is appealable to the Tribunal, an appeal right which Ms X has chosen to engage. The Ombudsman cannot comment on the content of Y’s EHC Plan.

Alternative Provision of education for children

Rules and regulations

26. 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.
27. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
28. 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)
29. 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
30. 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;

31. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled.
32. 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.
33. 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

34. Y’s attendance at school started to decline in the Spring term of 2023. On 17 April 2023, Y stopped attending school altogether with only 7 half-day attendances recorded since this date.
35. On 24 May 2023, Ms X put in a request to the Council for Medical Needs Teaching service for Y because of her being absent from education for more than 15 days. Ms X said Y’s mental health prevented her from attending school.
36. The Council arranged a panel to consider Ms X’s request for Medical Needs Teaching services for 7 June 2023. The panel considered Ms X’s submissions including a letter from Y’s doctor stating Y’s mental health meant she could not attend school and had not been in the last month. The panel said it had insufficient medical evidence to support Y’s absence and rejected the request for Medical Needs Teaching services. The Council recommended the school continued to try to facilitate Y’s return to school.
37. When the Council’s SEN Caseworker assessed Y’s need for an EHC Plan, they noted that Y was currently unable to attend school.
38. Ms X issued a formal complaint to the Council on 4 September 2023. Ms X reiterated her request for alternative provision of education for Y because of her continued absence from school.
39. On 29 September 2023, the Council asked Y’s school what provision it was making for Y given her absence. Y’s school agreed to send work home on 3 October 2023.
40. The Council issued its Stage 1 complaint response on 3 October 2023. The Council said the school had agreed to send work home for Y and it was seeking support from the Council for Y’s education.
41. Ms X responded to the Council’s complaint response and advised the school was not sending work home for Y. Ms X said it was the Council’s responsibility to provide education for Y.
42. Y’s school started to send work home for Y in October 2023. Ms X said this work was not suitable for Y.
43. On 7 November 2023, the Council issued its Stage 2 complaint response. The Council said:
    • It understood Ms X’s concerns about Y’s lack of education.
    • It had decided that Y’s school could provide suitable education for Y.
    • It had told Y’s school to send work home and it will work closely with Y’s school and Ms X to agree an enhanced support and reintegration plan for Y.
44. On 10 November 2023, the Council told Y’s school to mark Y’s absence as unauthorised as it considered the school placement suitable.

Analysis

45. It is not the role of the Ombudsman to investigate the actions of a school. I cannot investigate the actions of the school from January 2023 to 3 May 2023 about why the school failed to tell the Council about Y’s absence from school. I cannot find the Council at fault for failing to provide education for Y before it was made aware that Y was not attending school.
46. The Council first became aware of Y’s absence from school on 3 May 2023 following Ms X’s request for an EHC Needs Assessment for Y. However, this EHC Needs Assessment confirmed Y was attending an arranged part-time timetable and confirmed Y’s attendance was 84.7%. Neither Ms X nor Y’s school told the Council about Y’s entire stop in attendance. I do not find fault with the Council failing to act to provide education for Y at this point.
47. Ms X made the Council aware on 24 May 2023 that Y was no longer attending school. Ms X supported this with the letter from Y’s doctor. It would have been evident from this date that Y was not attending school.
48. When the Council completed the panel review on 7 June 2023 it declined to provide education for Y because it had insufficient medical evidence.
49. 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 either consecutively or cumulatively.
50. While the Council may not have had sufficient medical evidence of Y’s absence, it was clear Y was still absent from school, and had been for more than 15 days. The Council failed to provide education for Y, failed to help Y’s school create a suitable reintegration plan for Y or keep her part-time timetable under review or consider enforcing Y’s attendance at school. The Council’s failure to take any of these actions meant it failed to meet its Section 19 duty. This was fault.
51. The Council failed to meet its Section 19 duty until the date of issuing the Final EHC Plan on 10 November 2023. While the Council decided about the suitability of Y’s school and took action on, and since, this date, this is outside the jurisdiction of the Ombudsman to investigate. This is because of the cross-over with Ms X’s appeal to the Tribunal about Y’s named educational placement.
52. Under normal circumstances, the Ombudsman would only look to provide an award for Y’s missed education from 24 May 2023 to 10 November 2023. We would consider recommending a payment between £900 and £2,400 per term to recognise the impact of lost education on Y.
53. However, in the Council’s response to the Ombudsman it has accepted that Y has been without education for almost three terms, most of which was during a transitional year of education. The Council has offered to pay Ms X £6,000, at £2,000 per term, in recognition of the missed educational provision.
54. This offer falls in line with the Ombudsman’s guidance on recommendations per term. The distinction is the Ombudsman could not recommend such an offer had the Council not proposed it in this matter. This is because this offer covers a period in which Ms X had appealed to the Tribunal preventing the Ombudsman from investigating. It is also of note the Ombudsman does not provide awards for any potential future fault. The Council’s offer covers any potential future missed education up to the May 2024 half-term while the Council tries to source suitable education for Y.
55. Since the Council has made a suitable offer, beyond what the Ombudsman would normally be able to recommend in such circumstances, I am satisfied to maintain this offer from the Council.
56. In the Council’s response to the Ombudsman, it has also acknowledged that Ms X has gone to considerable time and trouble in trying to resolve this situation. The Council has offered £250 in recognition of this. Such an offer is in line with the Ombudsman’s guidance on remedies and I am also satisfied to maintain this offer.

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Agreed action

57. Within one month of the Ombudsman’s final decision the Council should:
    • Apologise to Ms X for the delays in production of Y’s EHC Plan and for failing to provide suitable education for Y.
    • Pay Ms X £250 for the time and trouble caused by the Council’s delays in production of Y’s EHC Plan.
    • Pay Ms X £6,000 as a symbolic payment for Y’s missed education for three terms.
58. The Council should provide us with evidence it has complied with the above actions.

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Final decision

59. I have ended my investigation and uphold Mr X’s complaint. The Council has proposed a suitable remedy which has resolved the outstanding issue and no further action by the Ombudsman is needed.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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