Summary: Ms X complained about the Council’s handling of her son’s Education, Health and Care needs assessment and alternative provision after he stopped attending school in September 2023. We found the Council failed to properly assess its section 19 duties after March 2024 and failed to consider putting alternative provision in place for the child. This caused Ms X and her son uncertainty about what support he would have received had the Council made a decision about its duties. The Council agreed to our recommendations on remedying the injustice its actions caused to Ms X and her son.

The complaint

1. Ms X complains about the Council’s handling of her son’s, S, Education, Health and Care needs assessment and alternative provision after he stopped attending school in September 2023. She also says the Council failed to:
• put alternative provision in place after she asked for it in March 2024; and
• respond to her complaint in line with its policy.
2. Ms X would like the Council to recognise its lack of action caused her and S distress and she had to pay for S’s tuition herself. She would like the Council to revise its procedures to make sure this does not happen to another family.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
5. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. 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)
7. 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)
8. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
9. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).
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.
11. 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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How I considered this complaint

12. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
13. Ms X and the Council have had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

14. The Children and Families Act 2014 (the Act) sets out the framework for supporting special educational needs (SEN). The Act is supported by Special Educational Needs and Disabilities Regulations 2014 (the Regulations) and the Special Educational Needs Code of Practice 2015 (the Code). These contain detailed guidance to councils about how they provide support for children and young people with SEN.
15. Most children with SEN have those needs met by schools and early years settings. Those bodies have a responsibility to identify children with SEN, sometimes with the help of outside specialists.
16. If a school or parent has concerns that, despite a school’s SEN provision, a child is not making the expected progress, they can ask their local council to consider whether it needs to carry out an assessment of EHC needs.
17. An EHC plan is a legal document which sets out a description of a child's special educational needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care.
18. A council must respond to all requests for an EHC plan. It must decide whether an assessment is needed within six weeks of receiving the request. The whole process from the point of request to the council issuing the final EHC plan must take no more than 20 weeks.
19. Where there are exceptional circumstances, it may not be possible for a council to meet the timescales. If so, it should tell the child’s parent or the young person of the reasons for any delays.
20. Councils must seek advice from the child’s parent, their school, healthcare professionals involved, an educational psychologist, and from anyone else the parent has reasonably requested (paragraph 9.49)
21. The Regulations set out the minimum information and advice councils should seek in an EHC assessment. A parent or young person can ask the council to seek advice from anyone within health, education or social care and, provided it is a reasonable request, the council must do so. It is more likely to be reasonable if that professional is already involved with the child.
22. The Regulations say the advice should be provided within six weeks, which is also the timescale for a local authority deciding whether it needs to draw up a plan.
23. The Code says councils:
• must ensure the child’s parents are fully included from the start and consulted throughout the production of the plan;
• should carry out timely, well informed assessments.
24. A council can only issue an EHC plan after a child or young person has gone through the assessment. At the end of that process it must decide whether to issue a plan or not.
25. If a council decides to issue a plan it must first issue a draft for the parents or young person to consider. It does not have to provide exactly what the parents request but it should be able to explain why the EHC plan meets the needs of the child.
26. The Ombudsman cannot investigate a council’s decision whether to conduct an assessment, and the content of the EHC plan as these are appealable to SEND Tribunal.
27. The Ombudsman can look at any delay in the assessment and creation of an EHC plan as well as any failure by a council to deliver the provision within an EHC plan.
28. Once a council issues the final EHC plan it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.

Educational provision – available and accessible

29. 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)
30. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
31. 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))
32. The education provided by a council must be full-time unless it determines that 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)
33. 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 mind? How councils can do more to give children out of school a good education, published in 2016)
34. 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 (with the exception of 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 in coming to decisions;
• decide, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

35. Our focus report states local authorities should not assume that schools shoulder the entire responsibility for a child’s education.

What happened

36. Ms X said that in September 2023 S stopped attending school. At the time Ms X did not tell the Council that S was not attending school. Ms X decided to take him out of school for his mental wellbeing.
37. In March 2024 Ms X asked the Council to assess S’s needs for an EHC Plan. At the same time, she asked the Council to provide alternative provision for S as he was not attending school. In response to her request the following month the Council contacted S’s school to check what provisions, if any, it had implemented to support S with his attendance. The school told the Council it offered reduced timetable, but it was unsuccessful, and S was still not attending.
38. In April Ms X complained to the Council about lack of alternative provision for S.
39. In the same month the Council said it would complete an assessment, but in August it issued a decision that it would not issue and EHC Plan for S because it considered his needs could be met at with the SEN support already available in school.
40. The Council’s records show an officer spoke to Ms X in early May 2024 and informed her that additional provision is listed on the Council’s Local Offer website, which included provision such as tutoring that S’s school could implement directly from the funding it received for him.
41. In August 2024, following a mediation, Ms X appealed the Council’s decision not to issue an EHC Plan to SEND Tribunal. In October the Council informed the SEND Tribunal that it would not oppose Ms X’s appeal and that it would issue S’s EHC Plan.
42. The Council issued S’s draft EHC Plan in early November 2024 and the final EHC Plan in December 2024. This plan named a mainstream secondary school in section I that S had been on roll with since September 2024. At the time, the school said it could not meet S’s needs.
43. In early December 2024 the Council issued a stage two response to Ms X’s complaint. It said that S’s school had funding and could put support in place for him to enable him to attend school, or alternatively it could ask the Council for medical tuition if it considered this was necessary. It also told that S’s school was now responsible for implementing alternative provision for him since it was named in his final EHC Plan the Council issued few days earlier.
44. Ms X was unhappy with the Council’s response and in the same month she asked the Ombudsman to investigate her complaint.

Analysis

EHC Plan Assessment

45. Generally, we expect councils to follow the timescales set out in the Code which is statutory guidance. We measure a council’s performance against the Code and we are likely to find fault where there are significant breaches of timescales.
46. Ms X asked for an EHC assessment in mid-March 2024. The Council decided not to carry out an assessment and issued a decision letter in the same month. This was within the six weeks from the date of a parental request as per the guidance.
47. Ms X then appealed the decision to the SEND Tribunal and the Council agreed to carry out the assessment. However, the Council agreed to carry out the assessment without the Tribunal deciding the matter. Therefore, the Council should have issued a draft plan within 5 weeks, and a final plan within 11 week, of formally deciding not to oppose the appeal. So it should have issued a draft Plan by November 2024 and the final plan by December 2024. The records show the Council issued both of those within the required timescales and it was not at fault for the delay in the process.

Alternative provision

48. Ms X asked the Council to provide alternative provision for S in March 2024. The Council’s records show it had contact S’s school and asked what interventions it had put in place. The case notes mention the school attempted a part-time timetable but that it had been unsuccessful. At this point, we would expect the Council to establish what suitable education would be for S, and decide if it had a duty to provide this to S under is section 19 duties. The Council did not do this, and this is fault. This caused Ms X avoidable uncertainty about what provision it would have put in place for S to meet his educational needs.
49. In May the Council directed Ms X to S’s school telling her that it was the school’s responsibility to provide S with alternative education. This is incorrect. S did have a school place and the school had attempted to put interventions in place to increase his attendance, however the Council should have decided if it needed to step in to ensure that S had access to full-time education, if it knew the school was not providing this.
50. In response to our enquiries the Council accepted that it had gaps in its existing practises abut how it assessed and met its section 19 duty. Because of this it organised training for its staff with the view to develop a plan to address the gaps and ensure compliance. We welcome this decision by the Council.

Complaint handling

51. The records show Ms X was chasing officers in the SEN team many times for updates, that she did not always get substantive replies and any replies did not give meaningful updates. The Council did not response to her initial complaint, and Ms X had to escalate it further to have the Council’s respond to her complaint.
52. The Council accepted that because of the number of complaints it was receiving it did not always respond to them in a timely manner. To address this the Council reviewed its complaint process and hired more caseworkers.

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Action

53. Within one month of the date of the final decision statement, the Council will:
• apologise to Ms X and S for its failure to assess what support he needed to access suitable for his needs education and the distress and frustration this has caused them. The Council should refer to our guidance on making an effective apology;
• pay Ms X £500 to recognise the avoidable uncertainty the Council’s lack of decision making in March 2024 caused her; and
• pay Ms X £200 to recognise the avoidable time and trouble she had to go to in chasing the Council for a response to her complaint.
54. The Council should provide us with evidence it has complied with the above actions.

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Decision

55. I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman