Summary: Mr Y complains the Council failed to ensure his daughter, D, received a suitable education when she stopped attending primary school in 2022. He also complains about delays in the Education Health and Care (EHC) process. Parts of Mr Y’s complaint are too old for us to consider without good reason. In the other parts of the complaint within our jurisdiction, there is fault because the Council did not take timely action to consider and arrange alternative provision once it became aware that D was not attending secondary school in September 2023. The Council will provide a symbolic payment for the missed provision, apologise to Mr Y, reimburse the privately funded tuition and make a further payment for distress caused by the delays.

The complaint

1. Mr Y complains the Council failed to act in accordance with its duties under Section 19 of the Education Act to arrange alternative educational provision for his daughter during the period she was unable to attend school. As a result, her education has suffered, and the family have experienced financial loss.

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The Ombudsman’s role and powers

2. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
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. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended) SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
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)

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What I have and have not investigated

6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.

Period one

7. For the reasons explained in paragraph two of this statement, I have not investigated the period between July 2022 when Mr Y says D stopped attending primary school and January 2023 when the school asked the Council for support. This is because the law says the person affected should complain to the Ombudsman within one year of having cause to complain. If Mr Y had concerns about the lack of action taken by the Council from mid-2022 it would have been reasonable for him to complain to the Council and then to the Ombudsman by mid-2023. His complaint to the Ombudsman arrived in April 2024. I have considered the explanation put forward by Mr Y for not making a complaint sooner, including not wanting to damage relationships with professionals, but these do not present ‘good reason’ for us to exercise discretion.

Period two

8. I have exercised discretion to investigate the period between January 2023, when the Council received a request from D’s school, and 9 February 2024 when D received a final copy of her EHC plan.

Period three

9. For the reasons explained in paragraph four of this statement, I have not investigated the period from 9 February 2024 onwards because D’s provision was named in a final EHC plan which carried a right of appeal to the SEND Tribunal.

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How I considered this complaint

10. During my investigation I considered the information provided by Mr Y and discussed the complaint with him by telephone.
11. I made enquiries of the Council and considered its response alongside the relevant law and guidance which I have referred to in this statement.
12. Mr Y and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
13. 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 found

The relevant law and guidance

14. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
15. Although there is no statutory timeframe, the Council should attempt to arrange alternative provision as soon as it is clear that the child will be away from school for more than 15 school days if their absence is because of illness.
16. The courts have considered the circumstances where the section 19 duty applies. Case law 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 them 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)
17. When considering whether to provide alternative provision, councils must have regard to statutory guidance, Arranging education for children who cannot attend school because of health needs (Dec 2023). This makes it clear that councils are not expected to become involved in situations where a child can still attend school with some support, or where a school has arranged to deliver suitable education outside of school.

EHC timescales

18. 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.

• 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. 
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the SEND Tribunal.
• 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);  

Key events leading to the complaint

Educational provision

19. In July 2022 Mr Y had concerns about D’s access to education and the impact of her anxiety on her ability to attend primary school full-time. An Education Welfare Officer (EWO) supported D and her school to implement a reintegration plan. At the time of the EWO’s involvement, D’s attendance at school was 61%.
20. Records show that D received 12 sessions of emotional literacy work and Art Therapy in 2022.
21. On 23 January 2023 D’s school emailed the Council to request a meeting to discuss D’s attendance. The school confirmed that D remained on a part-time timetable, but her attendance was just 40%. The school said D’s attendance had been 100% up until recent months.
22. Mr Y wrote to the Council on 8 February to request an EHC needs assessment.
23. On 16 February 2023 D’s school emailed the Council to relay the outcome of a recent meeting to discuss “emotional based school avoidance”. The school said the discussions pointed to D’s absence being “more a choice”.
24. The Council documented its view in February 2023 that “… there is a full time offer in place to attend school”. The Council echoed this in an email to Mr Y:

“… I’m advised that the school have indicated that a full-time offer is available and they continue to work with you to facilitate your daughter’s attendance. The multi-agency meeting held last week involved professionals from across the Local Authority, including Early Help and Education Welfare and I’m aware that an Education, Health and Care Plan (EHCP) has been discussed and this in the earliest stages. The plan discussed at your Team around the Family (TAF) meeting last week will be followed by professionals and will be reviewed in due course. This will continue to consider options for your child in line with the guidance and, with yourself and your family, will aim to facilitate improved school attendance and/or provision.”

25. On 22 March 2023 the Council emailed the school to request an update about D.
26. From March 2023 Mr and Mrs Y arranged some privately funded tuition for D.
27. Records from May 2023 show that D sometimes attended school and completed her SATs tests.
28. A TAF [Team Around the Family] meeting held on 25 May 2023 confirmed that D’s school attendance had dropped further to 32%. The school explained the measures it had put in place to support D. Mr Y has expressed his view that very few measures were implemented by the school. Records show that D expressed some interest in transitioning to Secondary school.
29. Records show that D started to engage in school throughout June 2023 but, “… this just needs to be monitored to be sustained”. This is taken from the Supporting Families Plan dated 29 December 2023
30. D left primary school in July 2023 in readiness to transfer to Secondary school in September 2023. Records show D attended Secondary school for around a week and a half before she stopped attending.
31. In October 2023 a psychologist’s report said D may benefit from “a different type of education offer”.
32. On 21 December 2023 the Council held another TAF meeting to discuss D’s case. The records show D’s school agreed to implement some educational and therapeutic provision on-site but Mr Y felt it would be impossible for D to attend.
33. D started at a specialist Secondary school in April 2024.

EHC assessment and planning

34. Mr Y contacted the Council on 8 February 2023 to request an EHC needs assessment for D. The Council assessed D and decided on 23 August that she did not need an EHC plan because, “provision required was deliverable within the resources normally available to a mainstream school”. It sent a rejection letter to Mr Y outlining his right of appeal.
35. Mediation was arranged to discuss the Council’s refusal. Before the meeting went ahead, the Council reconsidered its position and on 6 November decided to proceed with an EHC plan for D. The Council said its aim was to help D transition back into school.
36. The Council issued a draft EHC plan on 1 December and a final plan on 9 February 2024 naming a specialist secondary school for young people with Social, Emotional and Mental Health (SEMH) needs.

Was there fault in the Council’s actions causing injustice to Mr Y and D?

Alternative provision

37. In response to Mr Y’s complaint the Council agreed to provide some financial remedy in recognition of the provision D missed in 2023. In an email sent to Mr Y on 21 March 2024, the Council said:

“… it is clear that our process around establishing whether or not [D] was able to access school and as such whether we had a duty to secure suitable provision was not clear. As a result, I am proposing that the local authority will provide compensation for the period 01/09/2023 to 31/01/2024 – this is the period when she was on roll at [secondary school name removed] but not in full time attendance and where it is not clear that the local authority’s section 19 duty was followed, or what educational provision was being delivered. I am proposing that compensation of £100 per month (£500) is provided to be used towards additional tuition for [D] to help her catch-up on any lost education”.

38. The Council also offered D the opportunity to access short break provision for the remainder of the academic year.
39. In my view, the period of fault already identified is mostly correct and in line with what we would recommend. This is because the records from May and June 2023 show that D attended school on a part-time basis with some support, albeit inconsistently.
40. The records show the Council kept D’s education under review with Early Help, regular TAF meetings and a ‘Supporting Families’ plan throughout 2023. Although D’s school implemented a part-time timetable, the records show engagement by the Council to keep D’s education under review between February and July. The Council decided in February that D’s school provided a full-time offer which was available for them to access. The Council was entitled to take this view, and I find no fault in this period of the complaint.
41. However, in my view, the Council should provide an increased remedy because the period of fault ends on 8 February 2024. This is when D received the final EHC plan, and her parents had a right to appeal against the placement named in Section I.
42. The evidence shows that from mid-September 2023 it was clear D could not access her Secondary school placement. This is something the Council now concurs with. For total missed educational provision we would usually recommend a payment between £900 and £2400 per school term. The amount we recommend is based on the phase of the child’s education and takes into account any other provision they received during that period.
43. Mr Y has also explained that he and Mrs Y privately funded some online tuition for D during this period. As this is a quantifiable loss which flows from the fault, the Council has agreed to make a reimbursement for reasonable expenses once Mr Y has provided evidence of the expenditure for the period 1 September 2023 to 8 February 2024.

Delays in EHC process

44. Mr Y says the Council delayed in issuing D’s EHC plan which in turn delayed her access to the specialist provision eventually identified. The statutory Code of Practice sets out the timescales for EHC assessments and the provision of plans, as outlined in paragraph 18 of this decision statement.
45. If a council refuses an assessment but then reverses its decision without an appeal being submitted, and we find fault in the original process, we may decide the statutory timescale should run from the request for assessment and not from the date the decision was reversed. With this in mind, I find fault because:
• the Council responded with its decision to refuse to issue an EHC plan on 23 August. This amounts to 12 weeks of delay; and
• as Mr Y did not submit an appeal, and I am not aware of any new information which altered the Council’s position on the decision to assess, the statutory timescale from the date of Mr Y’s request to the provision of the final EHC plan is 20 weeks and by 28 June 2023. Mr Y received the final EHC plan on 9 February 2024. This amounts to seven and a half months of delay.
46. We have already recommended a symbolic payment in recognition of D’s missed provision from September. I have not recommended any remedy for the previous school year. This is because the period of EHC delay covered only 14 primary school days. It is not possible to say, on balance, what additional provision the Council would have ordered for this short period and at the very end of D’s primary education. In any event, any claimed injustice for this period is unlikely to be significant.
47. However, in my view, the significant delays in issuing D’s EHC plan caused avoidable and significant frustration for Mr Y which the Council has agreed to provide a remedy for.

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Agreed action

48. Within four weeks of my final decision, the Council will:
• Apologise to Mr Y for the significant delays in creating and issuing D’s EHC plan. We publish Remedies Guidance which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology to Mr Y.
• Pay £300 to Mr Y in recognition of the avoidable frustration caused by the significant delays in issuing D’s EHC plan.
• Pay £1,072 to Mr Y for D’s educational benefit. This is figure is for one term and one week of missed provision based on £1,000 per term. I am recommending a figure towards the lower end of the tariff based on the mitigating factor that D received some privately funded tuition. If the Council has already made the proposed £500 payment to Mr Y, it should reduce this remedy payment accordingly and to £572. This approach is in line with Chapter 5 of our Remedies Guidance.
• Reimburse the cost of educational materials or tuition purchased by Mr or Mrs Y between 1 September 2023 and 9 February 2024. When making the refund, the Council should consider costs that are a reasonable consequence of the identified fault.
49. I have not recommended any service improvements. This is because, following another investigation, we have already asked the Council to review its procedures to ensure:
• it completes EHC needs assessments within the statutory timescales, and monitors the progress of these assessments;
• keeps parents informed of the progress of an EHC needs assessment;
• monitors the delivery of provision in EHC Plans, taking into account our expectations about this; and
• properly considers its section 19 duty to arrange suitable education, when it is made aware a child is not attending school, and provides a suitable education, where it decides it should make alternative provision. Its procedure should make it clear the Council cannot delegate its legal duty under section 19 to schools and include a process for monitoring the arrangements made for a child’s alternative provision.

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Final decision

50. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The actions listed in the section above will provide an appropriate remedy for the injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman