Summary: There was fault by the Council. The Council delayed issuing an Education, Health and Care Plan and did not provide alternative educational provision for a child for the final year of primary school. Apologising and making a symbolic payment remedies the injustice. The child is now attending a specialist secondary school.

The complaint

1. The complainant, who I shall call Miss X, complains the Council delayed issuing an Education, Health and Care (EHC) Plan for her child, Y.
2. Miss X also complains the Council did not provide alternative education for Y who was not attending school, which has meant that he has missed education for a year.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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. I read the papers put in by Miss X and discussed the complaint with her.
7. I considered the Council’s comments about the complaint and any supporting documents it provided.
8. Miss X and the organisation 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

EHC Plan needs assessment

9. 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 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.
10. The Council has said it accepts there was a significant delay in the needs assessment process. The EHC Plan should have been finalised after 20 weeks. It took 40 weeks, this is fault.
11. To remedy the injustice from the delay, our guidance on remedies recommends a payment of £100 for each month outside the statutory timescales which continues up to the point the PA receives the final plan. The £100 a month is a symbolic payment to recognise the frustration and uncertainty caused to the family by the delay. It is not to remedy any loss of special education support to the child as they do not yet have an EHC plan.  
12. There was a delay of 20 weeks or 5 months. The Council has agreed to pay £500 to remedy the complainant’s frustration due to the delay.

Loss of education

13. Miss X asked for an EHC Plan needs assessment while her child was at primary school.

September 2023 until March 2024

14. 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.
15. 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)
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 their functions on their behalf, the council remains responsible. Therefore councils should keep oversight and control to ensure their duties are properly fulfilled.
19. Miss X met with the school in July 2023 about Y’s attendance.
20. The Council was made aware on 6 September 2023 that Y was accessing school part time. On 13 October 2023 the school told the Council that Y was not attending school. The Council has said that alternative educational provision was not put in place from 13 October 2023 until 25 March 2024 as the Council was advised the school were offering a bespoke package with a part-time timetable to enable reintegration.
21. The Council responded to Miss X’s official complaint to say ‘prior to the EHC Plan it was the school’s responsibility to provide Y with an education, including any Alternative Provision required to support with challenges accessing ordinary school provision. I am sorry to learn that you and Y have experienced such a delay with this being put in place and for the impact on Y having been out of education for such a prolonged period. I uphold this element of your complaint’.
22. From the information I have, the Council was aware that Y was not attending school from 13 October 2023. The Council has said that the school was responsible for providing Y with an education, but I have seen no evidence the Council checked with school that any bespoke education package was put in place or that the Council contacted the school to see if the reintegration was successful. This is fault, in that the Council was aware that a child was out of school but there is no evidence the Council monitored whether Y was receiving any alternative education from the school.

March 2024 until July 2024

23. 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)  
24. In its response to Mrs X’s complaint, the Council said it would in place some alternative educational provision for the Summer Term. This was not put in place. The Council said it offered Forest school provision but Mrs X said it was not suitable. I can see the forest school provision was not offered until the end of May. I find there was fault by the Council, as the provisions in section F of his EHC Plan were not put in place and no suitable alternative educational provision was arranged.

Remedy

25. Y spent most of 2023-2024 academic year out of school. This was his final year of primary school, so an important transition year. There is little evidence to show the Council had oversight of his education and attendance over this period other than telling Miss X that it was the school’s responsibility. This was fault, especially as the Council was aware that Y was out of school. Y started year 7 in a specialist school and is now attending well.
26. Our guidance on remedies recommends a remedy of between £900 and £2400 a term when a child is out of school with no educational provision. In this case, I consider the highest rate is suitable as Y was in an important transition year. So, I consider the Council should make a symbolic payment of £2400 for each of the 3 terms Y was out of school, a total of £7200. As I have said, if the Council has evidence that it was not at fault, I can reconsider this. While I appreciate the Council has mentioned school offered a bespoke package, I have not seen any evidence of dates and times this was actually offered.
27. We have made service improvement recommendations on a recent complaint so I do not need to add any to the remedy on this complaint.

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Agreed action

28. Within one month of the date of the decision on this complaint the Council should:
• Apologise to Miss X. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Miss X £7700.
29. The Council should provide us with evidence it has complied with the above actions.

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Final decision

30. I have completed my investigation of this complaint. This complaint is upheld and the actions above remedy the injustice to Miss X and Y.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman