Summary: Mrs X complained that the Council failed to provide her daughter (Y) with suitable education when she could not attend her school and delayed Y’s Education Health and Care needs assessment. Mrs X also complained about the Council’s school attendance process. We found fault with the Council’s failure to comply with the statutory timescales for Education Health and Care needs assessments and with its complaint handling. The Council’s fault caused injustice to Y and Mrs X. The Council has agreed to apologise and make symbolic payments.

The complaint

1. Mrs X says the Council:
• failed to provide her daughter with suitable education for four months when she was unable to attend school due to anxiety and mental health difficulties;
• delayed Y’s Education Health and Care (EHC) needs assessment;
• failed to follow its School Attendance guidance in the first months of 2024.
2. Mrs X says the Council’s failings meant Y did not have support at a time she needed it. She also says the Council’s failings had financial implications for the family as she funded privately some provision for Y. Mrs X felt she had no option but to withdraw Y from school and to declare she was Electively Home Educated (EHE) to avoid prosecution for non-attendance. This situation, she says, affected her, her husband’s and her son’s health and well-being.

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The Ombudsman’s role and powers

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. 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)
5. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
6. 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)
7. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
8. 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.
9. 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)
10. 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

11. I have not investigated whether Y’s primary school complied with its school attendance duties for Y. This is because, as pointed out in paragraph five of this decision, we cannot look at schools’ actions unless a school acts on behalf of the council.
12. I have not investigated anything that happened after the beginning of April 2024, when the Council issued Y’s final EHC Plan. This is because any later events were not part of Mrs X’s complaint raised in February 2024. Besides if Mrs X was not happy with the content of the plan she could have appealed. Y’s education would have been linked to the appeal.

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How I considered this complaint

13. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
14. Mrs 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

Legal and administrative framework

EHC Plans

15. 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:
• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the 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;
• where councils decide it is not necessary to issue an EHC Plan for a child, they should notify the parents within 16 weeks from the date they received request for an EHC needs assessment;
• 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.

Attendance

16. The Education Act 1996 places a duty on parents to ensure their children of compulsory school age, receive a suitable full-time education. Failure to meet this duty is an offence. Councils have the power to prosecute parents who fail to ensure their child’s regular attendance at school. If the court finds a parent guilty of an offence they can receive a fine or imprisonment of up to three months.
17. Where a child’s attendance at school drops below a certain level, it is likely a council’s Education Welfare Officer (EWO) will become involved after a referral from the school. EWOs have various responsibilities. These are typically a mix of providing advice and support to schools, parents and children, while also leading a council’s investigation and enforcement of the law around school attendance.

Elective Home Education

18. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. Elective home education is distinct from education provided by a council otherwise than at school, for example when a child is too ill to attend. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.
19. The 2019 guidance says the primary responsibility remains with the parent, but councils have a social and moral duty to ensure that a child is safe and being suitably educated. Where there is clear evidence the child is receiving suitable education, the need for contact should be minimal.
20. In circumstances where the child cannot attend school, the council should be offering alternative provision to reduce the likelihood that a child will end up without suitable education.

Alternative provision

21. 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.
22. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible.
23. 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)

The Council’s website information

24. It is a criminal offence if you do not send your child to school on a regular basis. If your child's attendance does not improve, after support has been offered by the school and or other professionals the Local Authority may consider the issuing of a penalty notice or prosecution in the Magistrates' Court where you will receive a criminal record and be subject to one of the following sanctions:
• a fine - the maximum of £1,000 per parent per child, or in more serious cases up to £2,500 per parent per child;
• Parenting Order - this means you must attend parenting classes and meetings in school on a weekly basis;
• Education Supervision Order - this means If the local authority thinks you need support getting your child to go to school but you're not co-operating, they can apply to the court to stipulate how this will happen;
• Community Order - which means your punishment will be carried out in the community managed by the Probation Service;
• custodial sentence of up to 3 months.

What happened

EHC needs assessment and issuing of the EHC Plan

25. In mid-May 2023 the Council received a request for Y’s EHC needs assessment. The Council started assessing Y’s needs at the end of June.
26. At the end of December 2023 the Council decided not to issue an EHC Plan for Y.
27. Two months later, following a mediation the Council changed its decision about issuing an EHC Plan for Y. At the mediation stage the Council received an up-to-date school report and an inclusion outreach team observation report from the end of January 2024.
28. In March the Council corresponded with Mrs X about a secondary school to be named in Y’s EHC Plan from September 2024. Mrs X said it was difficult for her to find the right placement, which would meet Y’s needs.
29. The Council issued Y’s final EHC Plan at the beginning of April 2024.
30. In mid-June 2024 the Council issued Y’s final amended EHC Plan, specifying from the end of March 2024 Elective Home Education and from the beginning of September 2024 a specific mainstream academy.

Y’s education from September 2023 up to the beginning of April 2024

31. From mid-September 2023 Y stopped attending school.
32. Later in the month the Council’s School Attendance Team contacted Mrs X to discuss Y’s absences. Mrs X told the Attendance Officer she did not need support as she had taken alternative action. The Attendance Officer also communicated with Y’s school.
33. Mrs X arranged for Y to attend a forest school (Provider 1) and an animal therapy provider (Provider 2). She paid £1,320 for Provider 1 and £525 for Provider 2 from the beginning of November 2023 up to the beginning of April 2024.
34. At the end of November a meeting took place in Y’s school with the Council’s access and inclusion officer participating. The Council and Y’s school considered Y should be attending school and refused to fund Provider 1 and Provider 2 as they were not registered by Ofsted. The Council suggested for Y a programme, which Mrs X did not consider accessible for Y as she would not have fulfilled the entry criteria. In any case Mrs X found out the programme would not be available until February 2024.
35. In mid-December 2023 Mrs X corresponded with the Council about Y’s education. She asked for the clarity on whether the Council would refuse to fund any non-Ofsted registered providers and asked for the details of the alternative provision programme. The Council explained in most cases it would be the child’s school applying for and commissioning alternative provision.
36. In mid-December 2023 a meeting was booked for Mrs X to discuss Y’s education with the Council’s Attendance Officer and Y’s school representatives. Mrs X asked for a permission to record the meeting as a reasonable adjustment to address her specific needs. Shortly after this request, the meeting was cancelled. The reason given for the cancellation was the absence of the school’s staff. Mrs X was upset as she thought the cancellation was connected to her request.
37. A few days afterwards Mrs X told Y’s school the delay in finding suitable educational arrangements for Y was causing financial crisis for the family. Y’s parents were funding two alternative providers, for which they had to borrow the money. Mrs X claimed the programme suggested by the Council would not be suitable for Y as it did not cater for children with the profile like hers. Besides it was only meant to last up to three months which would not be long enough for Y to build relationships. Mrs X was concerned that Y was not meeting the programme’s entry criteria.
38. A few days before Christmas Mrs X told Y’s school Y wanted to return to school and would attend half days to begin with.
39. After a meeting in the early January 2024 Y went back to school with a modified timetable. At the end of January the inclusion outreach service carried out Y’s observation at school and prepared a report.
40. During a telephone call with the Attendance Officer Mrs X informed them Y was attending the school in line with the modified learning plan. Mrs X expressed her concerns about the plan.
41. In the second week of March 2024 an attendance support meeting took place to discuss Y’s further unauthorised absences. Y’s modified learning plan ended recently. Y continued attending Provider 2 one day a week which the school recorded as unauthorised absences. The Council presented Mrs X with a parenting contract, which she refused.
42. A few days later Mrs X asked the school to remove Y from its roll. Mrs X said she would educate Y at home. Mrs X told us she had felt under pressure to do it as she wanted to avoid sanctions from the Council.

Complaint handling

43. At the end of February 2024 Mrs X complained about the Council’s failure to make alternative arrangements for Y from September to December 2023 when she could not attend her school and for the Council’s delays in Y’s EHC needs assessment.
44. At the beginning of April the Council apologised for the delay in responding and said due to the delay it would consider Mrs X’s complaint at stage two.
45. In its response from mid-April 2024 the Council accepted it had delayed EHC Plan process for Y but this, it said, had not caused her any injustice as her school was prepared to put interventions in place following the professional recommendations. The Council did not uphold Mrs X’s complaint.
46. At the beginning of May 2024 Mrs X asked the Council to escalate her complaint and to specify timescales for the Council’s response. After several more emails from Mrs X, during a telephone conversation in the second week of June 2024 the Council told her the official timescale for a response was 60 days.
47. In mid-August Mrs X raised her complaint with us.
48. The Council provided its stage three response to Mrs X at the end of October 2024. The Council acknowledged its delay in completing Y’s EHC needs assessment. Y’s school, the Council said, provided reasonable adjustments to meet Y’s needs and was implementing measures to support Y at school. Y had stopped attending school in mid-September 2023, before any further discussions about her progress could take place and Mrs X told the school Y was receiving education from two alternative providers. This was not authorised by Y’s school or the Council. Y’s absences from school remained unauthorised.

Analysis

EHC needs assessment and issuing of the EHC Plan

49. The Council should have made its decision whether to issue an EHC Plan for Y 16 weeks from the EHC needs assessment request so by the beginning of September 2023. This happened three and a half months later.
50. We would not criticise the Council for its decision not to issue an EHC Plan for Y. The decision could have been appealed to the SEND Tribunal and this would be the right way to challenge it. The Council’s change of position during the mediation was legitimate in view of some new evidence it had received.
51. After the Council’s decision to issue an EHC Plan for Y at the end of February 2024 there were no more significant delays. The Council issued Y’s final EHC Plan at the beginning of April 2024.
52. The delay within the EHC needs assessment is fault. It caused injustice to Y as it delayed by nearly four months clarification of the support Y needed as well as on a secondary placement the Council proposed for her. It also caused distress to Mrs X and delayed her appeal rights.

Y’s education from September up to the end of December 2023

53. In the autumn term 2023 there was a difference of opinion between the Council and Mrs X about Y’s education. The Council considered Y should have been attending her school as:
• she was on the school’s roll so the place was available for her;
• the school was consistently saying it could meet Y’s needs and was recording Y’s absences as unauthorised;
• the school was prepared to put additional provision in place to support Y’s attendance.
54. Mrs X arranged Provider 1 and Provider 2 without any consultation with the school or the Council. The Council’s attendance team was involved throughout the autumn term and its position was clearly expressed at the meeting in November 2023. The Council did not consider it had a duty to arrange alternative provision for Y as she had a place at school and the school was arranging extra provision to ensure Y could access it. The Council was focusing on supporting Y to attend her school, possibly offering some extra provision such as the alternative provision programme.
55. As explained in paragraph four we cannot criticise merits of the Council’s decisions. When taking decision on its Section 19 duty for Y the Council followed the correct process, therefore I found no fault.
56. I cannot make a finding on the reasons why a meeting in December 2023 was cancelled as there is Mrs X’s claim against the school’s statement. It would be disproportionate to carry out further investigation of this matter.

Attendance

57. I did not find fault in the way the Council had approached its attendance duties in spring term 2024. In particular:
• the Council’s attendance team was involved with Mrs X and the school;
• the Council was aware of the modified learning plan prepared for Y by her school;
• in March 2024 a meeting took place to discuss Y’s school attendance.
58. The law specifies what councils can do to ensure parents of the children of compulsory school age cooperate in getting them to school. We would not criticise councils for referring to the legal mechanisms available to them. Mrs X would be able to challenge any sanctions imposed by the Council.
59. A parenting contract is a voluntary agreement between parents or carers and a school or local authority, typically used to address a child's attendance or behaviour issues. It is generally considered to be a collaborative approach to support the child's improvement by outlining expectations and support from both the parent and the school or local authority. The Council’s policy ‘School Attendance Guidance 2023’ explains that arranging attendance support meetings and agreeing parental contracts are part of the Council’s process of dealing with the attendance issues for children without EHC Plans. Therefore we would not criticise the Council for proposing it.

Complaint handling

60. The Council delayed providing its response to Mrs X’s complaint at stage one and stage three. Acknowledging its delays in providing stage one response, the Council responded at stage two in April 2024.
61. The Council should have responded at stage three by the beginning of August 2024 but in fact it happened at the end of October 2024.
62. The overall delay of a few months in the Council’s complaint process is fault. It caused injustice to Mrs X as she was increasingly frustrated by the Council’s lack of response to her concerns. Mrs X spent much time contacting the Council and trying to get some clarity on the process.

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Action

63. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• apologise to Mrs X and Y for the injustice caused to them by the faults identified. 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 I have recommended;
• pay Mrs X £400 to recognise the injustice caused by the Council’s delays in Y’s EHC needs assessment;
• pay Mrs X £150 to recognise her extra time and trouble when complaining.

The Council should provide us with evidence it has complied with the above actions.

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Decision

64. I find fault causing injustice. The Council has accepted my recommendations, so this investigation is at an end.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman