Summary: We found fault on Mr Y’s complaint about the Council failing to provide his son, Z, with suitable alternative education since he stopped attending school. It delayed issuing an Education, Health and Care plan. It failed to show it assessed Z’s needs when he stopped going to school or considered whether he was receiving a suitable education which was reasonably available and accessible. It also failed to show a record of its decision. These caused distress as Z lost education, had the uncertainty about whether it properly considered his situation, and caused frustration and stress. The Council agreed to send an apology, pay for missed education, pay for the distress caused by the delay and other fault, and actions it has now taken.

The complaint

1. Mr Y complained about the Council failing to:
1. provide his son, Z, with suitable alternative education provision since he stopped attending school in November 2022: and
2. properly address his formal complaint.
2. As a result, he has not received the education he needs which caused the whole family a great amount of stress and cost them financially.

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The Ombudsman’s role and powers

3. 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)
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. 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)
6. 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

7. Mr Y complained to us in July 2024 which means we would usually only look at events from July 2023. This was because 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. I considered Mr Y’s arguments about why we should investigate from November 2022 but was not persuaded to exercise discretion to investigate from that date.
8. We would only investigate the Council’s actions within jurisdiction to July 2024, which is when we received his complaint. I had to consider whether all the Council’s actions were within our jurisdiction between July 2023 to July 2024. In doing so, I considered the following:
1. The courts decided if someone appealed to the First-tier Tribunal (Special Education Needs and Disability), the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
2. This means if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision, or the educational placement in the Education, Health and Care plan (EHC plan), we cannot investigate a lack of special educational provision, or alternative educational provision.
3. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent, or young person, goes on to appeal, then the period we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC plan are finalised, so long as the council follows the statutory timescales to make those amendments.
4. We can look at matters which do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example: 

• delays in the process before an appeal right started;
• where there is support in an EHC plan that is not being delivered to the child or young person, and we decide the cause is unconnected to the appeal; and
• alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the Tribunal.  

9. This means I have not investigated the complaint about his son failing to receive education from the date the EHC plan was issued in March 2024. This was because the Tribunal could consider the naming of the school from this date.
10. For clarity, therefore, the period of time for this investigation is from July 2023 to March 2024, a period of eight months. Any reference to events before July 2023 was to help put the complaint into context.

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How I considered this complaint

11. I considered all the evidence provided by Mr Y, including the notes I made of our telephone conversation, and the Council’s response to my enquiries. I sent a copy of my draft decision to Mr Y and the Council. I considered their responses.

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What I found

The law and guidance

Education, Health and Care Plan

12. A child with special educational needs may have an Education, Health and Care (EHC) plan. This 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 education or name a different school. Only the Tribunal can do this.
13. Statutory guidance, ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’), sets out the process for carrying out EHC needs assessments and producing EHC plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:

• where a council receives a request for an EHC needs assessment it must give its decision within six weeks about whether it agrees to do an assessment;
• 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;
• 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); and
• councils must give the child’s parent, or the young person, 15 days to comment on a draft EHC plan.

Alternative Provision

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. 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)
16. 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))
17. The education provided by the council must be full-time unless the council decides full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
18. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
19. The courts considered the circumstances where the section 19 duty applies. Case law states 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)

What happened

20. Mr Y’s eight year old son, Z, was out of primary school from November 2022. He stopped attending as he increasingly found himself in trouble due to emotional dysregulation. Emotional dysregulation is when a person is unable to regulate their own emotions and how to act on those feelings. The Council noted Z was assessed in an Occupational Therapist report. This said he was not able to attend school due to Education Based School Avoidance. This is where a child struggles to attend school because of anxieties or emotional difficulties.
21. Mr Y complained the Council failed to provide alternative provision while Z was not at school.
22. After November, the school placed him on a reduced timetable under which he would go to school in the morning or at lunch to see his friends.
23. In February 2023, the school tried to introduce a further reduced timetable but, Mr Y was unhappy as this was not a long term solution. He made the Council aware of the problem the same month. While he accepted the school had tried to send Z work to complete, this was not targeted for him and his needs. Mr Y complained the school then stopped sending him work. It tried online meetings with Z, but this did not work. The Council said Mr Y ended the learning as he considered it caused Z greater anxiety.
24. The same month, an educational psychologist, commissioned by the school, saw Z. By now, Z was avoiding going to school. The educational psychologist’s report set out approaches and strategies for the school to follow. If Z still struggled after this, the report said the school may consider it appropriate to start gathering evidence to possibly apply for an EHC plan.
25. During April, Mr Y asked the school about alternative provision, such as art and music therapy for example, but he said nothing happened. The school made a request to the Council for an EHC needs assessment. In it, the school said Mr Y refused a ‘build-up’ timetable. It also said it had an adult available to support Z if he returned. It continued to send him work every week and offered online meetings each week.
26. The following month, Mr Y wrote to the Head of Children’s Services.
27. Records for July stated Z had been on a part time timetable during the summer but since Easter, Mr Y found it increasingly difficult to get him to school. School attendance was ‘rare’. The school continued to have an adult there to support Z should he come in and work was sent home every week. Mr Y told the Council Z attended a Forest School for one afternoon a week and went to gymnastics every other Sunday which he had arranged. A Forest School is a child centred long term program that supports plan, exploration, and supported risk taking to develop confidence and self-esteem.
28. In October, an educational psychologist carried out an assessment of Z and issued a report. This was done as part of the EHC plan process. This noted current special educational needs and disabilities provision was funded since the Spring. This consisted of a part time table (10.30am-1pm each day), nurture and a Forest school for half of every term, tailored learning, and an individual work station in the classroom, for example.
29. Records for November confirmed Z was not attending school because of anxiety and had only attended eight short sessions in one term of about one hour. They again confirmed he attended a Forest school and a gymnastic session. The Council confirmed these were used as alternative provision by the school during periods of non-attendance. The records again confirmed Z had not attended school since Easter. They also noted there was no evidence to say the medical needs team were involved or their involvement would have been appropriate.
30. The Council issued an EHC plan naming a school for Z in March 2024. Mr Y disagreed with the school named and appealed its decision.
31. When Mr Y complained, the Council responded in March. It told him Z remained on the school roll with the school agreeing it could meet his needs. The school: offered to make alterations to the school and the school day to support him; offered alternative provision at the school which was available since the last academic year (the Forest school); gave online learning which Mr Y ended as he considered it caused Z further anxiety; held discussions with a provider for Z to receive therapy. The Council also looked at whether it could make provision at a Specialist Resource Base.
32. The Council reviewed the suitability of what the school provided at the EHC plan annual review.

My findings

33. I found the following:
1. Although the Council sent evidence about what it had done after March 2024, which included contacting alternative schools for Z to attend for example, I have not considered it. This was because this was outside the period of my investigation.
2. I am satisfied the Council failed to carry out an EHC needs assessment and issue a final EHC plan within the statutory 20-week timescale from the date it received the request for an EHC needs assessment. The school made a request for an EHC needs assessment in April 2023. The 20-week period, therefore, would have been reached in early September. The final ECH plan was not issued until March 2024, six months later. This delay was fault.
3. I am satisfied this caused Mr Y an injustice. It caused avoidable distress in the form of frustration, uncertainty, and the lost opportunity of having the EHC plan in place sooner. It also delayed the opportunity to appeal.
4. The law states councils must intervene and provide education under their section 19 duty if no suitable educational provision has been made, for example by their school, for a child who is missing education through exclusion, illness, or otherwise. The duty arises after a child has missed 15 days of education either consecutively or cumulatively. This meant once the Council was alerted to Z's absence, it needed to consider its legal duties and take action where appropriate.
5. The Council needed to consider whether Z was receiving a suitable education, and whether this education was “reasonably available and accessible” to him. I have seen no evidence the Council did this during the period of this investigation. The Council failed to show whether it considered Y was receiving a suitable education and kept this under review. It failed to show it satisfied itself that one afternoon a week at a Forest school, and fortnightly gymnastic sessions on a Sunday which Mr Y arranged, amounted to a suitable education.
6. Nor was there evidence showing the Council assessed his needs when he first stopped going to school, or considered whether it had a duty to arrange alternative education for him. The evidence suggested it relied on the school to make referrals for alternative provision instead of considering whether it needed to make such provision itself.
7. The Council also failed to show it considered whether the work the school sent home was appropriate and suitable after Mr Y raised concerns about it not being targeted for Z and had increased his anxiety. It was also aware that since Easter 2023, Z had rarely gone into school, and there was an issue with the work the school sent home. I am satisfied the Council failed to show it considered its legal duties, whether it needed to act as a result of these developments, and to keep this under review.
8. Our principles of good administrative practice state councils should give reasons for their decisions and keep proper records. There was fault by the Council because it failed to record whether, how, and why it decided the education Z received was suitable, available, and accessible to Y.
9. I am satisfied these failures amounted to fault and caused avoidable injustice. There was distress caused in the lost education to Z, the uncertainty about whether the Council properly considered Z’s circumstances, and the frustration and stress it produced.
10. I considered Mr Y’s concerns about the Council not properly addressing his formal complaint. The only point I would make was the Council’s letter of 21 March 2024 to him was sent some six weeks after he had made his complaint and failed to explain he had the right to take it to the second stage under its complaints process. This was fault as its complaint procedure said a complainant at the first stage of the process is sent a response within 15 working days. Instead, it took six weeks. I consider it caused Mr Y some injustice in terms of frustration and uncertainty.

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Action

34. I considered our guidance on remedies as well as Z receiving some provision during the period of this investigation.
35. I also took account of the action the Council said it has taken which included:

• it agreeing to provide training for all relevant officers about EHC process timescales and to refresh it every year;
• holding training sessions on this issue which were given in September and October 2024;
• reviewing why the delay happened with the EHC process. It has recruited additional posts along with an improved system of monitoring performance information to avoid delays; and
• setting up a ‘priority programme’ focused on ‘Children Missing Out on Education. This group will help with the delivery of the learning and recommendations from this complaint.

36. The Council agreed to take the following action within four weeks of the final decision on this complaint:
1. Send Mr Y a written apology for failing to: issue the EHC plan within the statutory timescales; make and retain a record of its decision about whether it assessed Z’s needs and considered whether it needed to make section 19 provision.
2. Make a payment of £1,000 (two terms x £900 less recognition for some provision made) to Mr Y for Z’s missed education.
3. Make a payment of £600 for the delay with the issuing of the final EHC plan.
4. Make a payment to Mr Y of £250 for the distress caused by the identified fault and the impact this had on him.
5. Remind relevant complaint officers of the need to follow the Council’s complaints procedure.
37. The Council should provide us with evidence it has complied with the above actions.

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Decision

38. I found fault causing injustice on Mr Y’s complaint against the Council. The agreed action remedies the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman