Summary: Miss X complained the Council failed to put alternative provision in place when her child, W, stopped attending school. The Council was at fault for poor record keeping, failing to arrange provision when W’s school refused to and for delay in carrying out an Education, Health and Care Plan assessment for W. This caused Miss X avoidable uncertainty, frustration and distress for which the Council will apologise and pay her a symbolic financial amount.

The complaint

1. Miss X complained the Council failed to put alternative provision in place when her child, W, stopped attending school in November 2022 because of their health. Miss X said this affected W's learning and development, caused her avoidable stress and meant she had to stop working.

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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 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)
3. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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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What I have and have not investigated

6. 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)
7. Miss X complained about matters dating back to November 2022, but she did not complain to the Ombudsman until May 2024. Therefore, the period before May 2023 is late. I have seen no good reason why Miss X did not complain to us earlier so I cannot investigate events between November 2022 and May 2023. I have investigated the period May 2023 to May 2024.

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How I considered this complaint

8. I have considered:
• all the information Miss X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the relevant law and guidance and the Ombudsman's guidance on remedies.
9. Miss 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 law and guidance

Alternative provision

10. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative provision.
11. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
12. 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)
13. 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])
14. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that 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”.
15. 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
16. We made several 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;
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible;
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

17. 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.

Education, Health and Care Plan assessments

18. 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 the council can do this. 
19. 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 tribunal;
• 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).

Special educational provision

20. 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)  

What happened

21. This section sets out the key events in this case and is not intended to be a detailed chronology.
22. The Council became aware of W’s issues attending school (school B) when Miss X asked it to carry out an EHC Plan assessment for W in early October 2023. Miss X noted W had anxiety and ADHD and that W’s GP, a mental health counsellor and ADHD psychiatrist were available for advice if the Council decided to carry out an assessment. Miss X included contact details for those individuals.
23. The Council arranged for Miss X to receive one-to-one support from its attendance team, which included leading an attempt to reintegrate W back into school on a part-time timetable. Miss X also had one-to-one help from the Council with strategies to manage W’s school avoidance.
24. W was referred to the Council’s medical needs teaching service in November, but did not meet the criteria for support because they were not currently receiving support from a specialist for their mental health needs.
25. In early December 2023, a Council panel decided it would not assess W for an EHC Plan. It considered Miss X’s assessment request and an ADHD diagnosis report she submitted in mid-November in coming to that decision. The Council recommended school B use strategies recommended by the Council to help children with extended school non-attendance. It said in the meantime, school B should arrange alternative provision to minimise gaps in W’s education so their reintegration would be successful.
26. The Council issued its decision not to assess W in early December 2023. Miss X appealed that decision to the SEND Tribunal.
27. In mid-January 2024, the Council held a mediation meeting with Miss X to discuss her appeal. Records show that, as a result of the meeting, the Council decided school B were not doing anything substantial to support W’s reintegration to class or to arrange alternative provision. As a result, it accepted it owed W the alternative provision duty.
28. In January 2024, Miss X asked the Council about support from its pupil tuition team. The team provides short-term education for children unable to attend school for reasons other than illness or injury. School B made a referral but W attended one session in early February, but Miss X said W was too anxious to engage.
29. In early March, the Council attended a meeting with school B. It suggested school B arrange an alternative provision package made up of ten sessions a week including tuition, delivered outside of school. School B refused to arrange the alternative provision.
30. After further discussion with the Council, school B again refused to arrange alternative provision for W in mid-March.
31. The Council told me it accepts that at that point, it should have considered what provision it needed to arrange directly. It said that had it done so, it would have likely re-offered tuition through the pupil tuition service.
32. In late March 2024, the Council overturned its decision before it was heard at appeal and issued a decision to assess W. The Council made its decision to issue W with a Plan in early October 2024.
33. In response to my enquiries, the Council said it accepted it had not issued W’s EHC Plan within the necessary timeframe because of a delay getting advice to inform the provision in the Plan. The Council said that because of this, it would make a remedy for Miss X.
34. The Council issued W’s EHC Plan in late 2024.

Recent Ombudsman investigations

35. In response to several recent Ombudsman investigations, the Council agreed to take the following actions:
• Provide an action plan detailing the steps it will take to prevent delays in EHC assessments in future; and
• Provide an action plan setting out the steps it will take to ensure it complies with the alternative provision duty.

Findings

Alternative provision

36. Miss X says W was unable to attend school B because of their health. The Council was unaware of W’s difficulties attending school until October 2023, when Miss X asked it to assess W for an EHC Plan. Therefore, the Council was not at fault between March and October 2023.
37. Miss X’s October assessment request alerted the Council to the fact W was not in school. The Council decided W was not out of school on health reasons, and therefore was not in need of alternative provision. Instead, it worked with school B and Miss X to implement strategies to help W to reintegrate.
38. The Council has no records to show how it decided that W did not need alternative provision when it first received Miss X’s request. Although Miss X’s assessment request did not include any medical evidence that stated W could not attend school, it noted W had anxiety and an ADHD diagnosis and stated a counsellor, ADHD psychiatrist and GP could be contacted to speak about W’s needs. This indicated that there were some medical professionals which may be able to advise on W’s ability to go to school. Statutory guidance is clear that where specific medical advice is not available, councils should consider contacting other medical professionals involved with the child to help them decide whether they need to arrange alternative provision.
39. Without appropriate records, I cannot say, even on balance, whether the Council acted in accordance with the statutory guidance and whether it considered whether it owed W the alternative provision duty properly. Such records need not be onerous; they should only show how the Council weighed up the relevant evidence and came to its decision. In practical terms, a case entry would be sufficient. The poor record keeping was fault and calls the Council’s decision making into question. This caused Miss X distress and uncertainty.
40. In early December 2023, the Council considered Miss X’s assessment request and the ADHD report to decide if W needed an EHC assessment. Records of that consideration evidence the Council decided W could still attend school B if strategies were put in place for them. This shows the Council still felt education at school B was available and accessible to W, meaning it did not owe the alternative provision duty. Nonetheless, the Council also decided W needed alternative provision to catch them up on education they had missed while out of school, thereby increasing the chances of success in reintegrating W to school B. This was a decision the Council was entitled to make. The Council considered relevant information in deciding it did not need to arrange alternative provision so was not at fault.
41. The Council accepted after the mid-January 2024 mediation meeting that it owed W the alternative provision duty. It decided this because school B was not taking appropriate steps to make education available and accessible to W through use of the reintegration strategies and provision to catch them up.
42. The Council tried to meet that duty by arranging for W to receive provision from its pupil tuition team and when that did not work, by asking school B to arrange a weekly package of provision outside of school. However, in March 2024, school B repeatedly refused to arrange that provision. The Council accepts at that point, it should have considered what provision it should arrange directly. I agree with that conclusion; when it became apparent school B was unwilling to arrange alternative provision on the Council’s behalf, it should have arranged that provision itself. The Council’s failure to do so was fault.
43. The Council feels that had it acted properly, it would have re-offered tuition through the pupil tuition team. On balance, I consider this is likely what would have happened. W had only attended one session and the Council would probably have concluded that W would be able to engage with the sessions if they continued attending and developed a relationship with the tutors. This is a decision the Council would have been entitled to make as it is for the Council to decide what form any alternative provision should take.
44. Given Miss X stopped the sessions when they started in February 2024, I cannot say, even on balance, that W would have returned to the pupil tuition team had the Council offered it. This means I cannot say the fault meant W missed out on provision. The injustice is therefore frustration and uncertainty for Miss X.

Education, Health and Care Plan assessment

45. When a council receives an EHC assessment request it must issue its decision on the request within six weeks. If it decides to carry out an assessment then it should issue its decision on whether to issue an EHC Plan within a further ten weeks and if it ultimately issues a Plan, it must do so within 20 weeks of the date it received the assessment request.
46. The Council received Miss X’s assessment request in early October. It should have issued its decision to assess by mid-November. The Council made its decision in early December, which was a delay of two weeks. This does not amount to fault.
47. Miss X appealed the Council’s decision and the Council overturned it in late March 2024. It issued a new decision to assess W, which meant the Council should have issued its decision on whether to issue an EHC Plan for W within a further ten weeks; by late May 2024. The Council did not do so, which was fault. Instead, it issued its decision in early October; over four months late.
48. This delay meant the Council missed the deadline for issuing W’s final EHC Plan; late June 2024. The Council has now issued W’s EHC Plan but I cannot say the delay meant W missed out on special educational provision they should have had. This is because the Council would have secured the provision through the offer of education from the pupil tuition team and as noted in paragraph 44, I cannot say that W would have returned to the pupil tuition team had the Council offered it.
49. If Miss X feels W’s time out of education and the delay in issuing their EHC Plan has affected them, it is open to her to seek additional or different provision in W’s EHC Plan.

Service improvements

50. The Council recently agreed to send the Ombudsman action plans setting out what it will do to address issues with EHC assessments and alternative provision. I am satisfied these actions are appropriate to prevent fault in the future so I have not made further recommendations.

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Agreed action

51. Within one month of the date of my final decision, the Council will take the following actions:
1. Apologise to Miss X for the frustration, uncertainty and distress she felt because of the faults identified in this decision statement. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
2. Pay Miss X £400 in recognition of the impact on her of its poor record keeping and failure to offer alternative provision when school B refused to arrange a package of education for W.
3. Pay Miss X £100 per month for every month of delay in W’s EHC assessment. This is to recognise the frustration and uncertainty the delay caused her.
52. The Council will provide us with evidence it has complied with the above actions.

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Final decision

53. I have completed my investigation. I have found fault leading to personal injustice. I have 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