Summary: Ms A complained the Council failed to ensure Mrs X’s child received suitable education since September 2023. Ms A also complained the Council failed to complete an Education, Health and Care Needs Assessment of for Mrs X’s child. We found fault for the Council failing to properly consider and act on its Section 19 duty for a total of 19 weeks from January 2024 to July 2024. We also found fault with the Council failing to consider when it should complete an Education, Health and Care Plan Needs Assessment. The Council agreed to apologise to Mrs X and pay her £250 for the avoidable frustration and inconvenience its fault caused her. The Council also agreed to pay Mrs X’s child £2,300 for their missed education caused by its fault.

The complaint

1. Ms A complained the Council failed to ensure Mrs X’s child had access to suitable education since September 2023. Ms A said this was because of a failure by the Council to consider the suitability of the part-time timetable and failure to provide suitable Alternative Provision of education for Mrs X’s child.
2. Ms A also complained the Council threatened prosecution of Mrs X for her child’s non-attendance at school.
3. Ms A also complained the Council failed to carry out an Education, Health and Care Plan needs assessment for Mrs X’s child.

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The Ombudsman’s role and powers

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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended).
5. 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).
6. 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).
7. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
8. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
9. 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

10. I have investigated Ms A’s complaint about the lack of education provided for Mrs X’s child since September 2023 up to the end of December 2024. I have ended my investigation at the end of December 2024 because a council must have opportunity to consider and respond to a complaint before the Ombudsman investigates.
11. The Council issued its Stage 2 complaint response on 22 August 2024. The Ombudsman passed this matter over for consideration on 6 December 2024, telling the Council we would be investigating on 11 December 2024. The Council had suitable opportunity up to this point to investigate and reply to the complaint. I have exercised my discretion to investigate matters to the end of the school term in December 2024.
12. Any matters from January 2025 onwards would be the subject of a new complaint. Ms A would need to raise this with the Council first before the Ombudsman could investigate.
13. The Council did not issue truancy letters to Mrs X. Truancy letters have been issued by Y’s school. The Ombudsman cannot investigate the actions of schools. I cannot comment on the actions of the school in taking any truancy action against Y and my investigation is solely focused on the actions of the Council.

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How I considered this complaint

14. I have considered all the information Ms A provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
15. Ms A and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

Rules and Regulations

EHC Plans

16. An Education, Health and Care Plan (EHC Plan) is a legal document which sets out a description of a child's 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.
17. 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. 
• 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. 
• 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). 
18. Once the Council completes the 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.
19. The Ombudsman can look at any delay in the assessment and creation of an EHC Plan as well as any failure by the Council to deliver the provision within an EHC Plan.

Alternative provision of education

20. 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.
21. 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)
22. 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))
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)
24. 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
25. 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.

26. 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.
27. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when a child has been excluded. Government guidance recommends for medical issues that a council considers its Section 19 duty to provide education where it is clear the absence is for more than 15 school days. When a council arranges alternative education on medical grounds, that education should begin as soon as possible, and at the latest by the sixth day of a child’s absence. In other absences, there is no set guidance but the Council should arrange education without undue delay.
28. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

What happened

29. Mrs X’s child, who I shall refer to as Y, stopped attending school in September 2023 following the summer holidays. Y only attended three half days at school from 4 September 2023.
30. On 16 November 2023, Y’s school submitted an Early Help Assessment form to the Council advising that Y was not attending school despite its attempts at a reduced timetable and phased return. Y’s school noted that it has offered support but Y has chosen not to engage in education.
31. The Council accepted the Early Help Assessment application on 21 November 2023 and developed an interim plan of support for Y. This plan of support involved offering transport for Y to go to school and a further phased return. Y declined this on 8 December 2023.
32. Y’s school issued an attendance warning letter to Mrs X about Y on 11 December 2023.
33. On 15 January 2024, the Council attended a meeting with Mrs X, Y and the school to discuss Y’s attendance at school. The Council confirmed there were no barriers to Y attending school and that a part-time timetable and transport was still on offer to Y. As part of the outcomes of the meeting, a plan for Y included the Council consulting with “Creative Works Preston to enquire about alternative provision” by 31 January 2024. A new meeting was set for March 2024.
34. In February 2024, the Council drew up a parent contract for Mrs X for discussion at the next meeting.
35. On 21 March 2024, Mrs X declined the parent contract at the next meeting. The Council offered mental health support for Y which Y declined. The Council and Y’s school agreed for the school to provide online education for Y following the Easter break.
36. Online learning started for Y on 15 April 2024. A home check on 29 April 2024 confirmed Y was accessing this online learning but confirmed that Y should look to return to school and online learning was only temporary.
37. Y’s school held further meetings with Y in the summer 2024 term in which it extended the provision of online learning but wanted Y to start reintegrating into school. Y declined to attend school or a college taster day. A meeting was arranged with the Council for 3 July 2024.
38. On 2 July 2024, Ms A raised a formal complaint with the Council on behalf of Mrs X. Ms A said:
• The Council had failed to provide suitable education or reintegration plans for Y until 21 March 2024 when it agreed to provide online learning for Y.
• Y had poor access to online education because of technical difficulties with the laptop which Mrs X raised with Y’s school.
• The Council failed to take oversight of Y’s access to education since September 2023 and had failed to meet its Section 19 duty.
• When the Council accepted its Section 19 duty to provide alternative provision of education, it failed to ensure this was full time and only provided two days a week.
• The Council failed to consider Y’s needs and circumstances when setting up alternative provision of education as ended this after a set number of weeks rather than when Y was ready to reintegrate into school.
• Inappropriate threats had been made to prosecute Mrs X for Y’s lack of school attendance.
39. During the 3 July 2024 meeting, Y’s school agreed to extend Y’s online learning to the end of the school year but confirmed it would not provide this in September 2024.
40. On 17 July 2024, the Council provided a Stage 1 complaint response to Ms A. The Council said:
• The school offered interventions between September 2023 and December 2023 to support Y’s access to education.
• Children and Family wellbeing completed works for Y but confirmed nothing to work on.
• It drew up a Parent Contract in February 2024 but Mrs X did not sign this.
• On 21 March 2024, Y’s school agreed to provide online learning resulting in a six-week intervention for Y.
• At home visits Y confirmed they were engaging with online learning but later came to light that Y was instead logging on to games. Council has asked school to complete closer observations of Y.
• Plan was for Y to have short term online interventions followed by Y returning to school.
• It did not consider online tuition was appropriate for Y moving forwards because Y is not fully engaging with this learning and showing no progress to reintegration into school. The Council said it also had no medical evidence Y needed online learning.
• It has asked Y’s school to provide a pack of work for Y while it finds a suitable solution for Y’s education.
• An EHC Plan Needs Assessment can only effectively take place if Y is attending school so reiterated need for a phased return for Y.
• Y’s school and the Council had only sent standard communications to Mrs X about attendance procedures when a child is absent and it had not sent threatening letters.
41. On 26 July 2024, Ms A sought consideration of the complaint at Stage 2 of the Council’s complaints process. Ms A said:
• The Council and school had done very little to provide meaningful support for Y and Y only refused offers because the offers of support were not suitable.
• Mrs X was never told she needed to supervise Y for the online learning resulting in time being spent accessing games instead. Ms A said Y needs adult supervision for education.
• Alternative Provision should be offered which is suitable and accessible for Y’s needs and the Council has a duty to provide this. Ms A suggested 1:1 tutoring for Y while they look to reintegrate Y into school.
• The letters sent about attendance were threatening in nature.
• The Council had failed to get professional advice about whether the school setting was suitable for Y.
• The Council’s failure to get suitable alternative provision of education for Y has resulted in Y being unable to reintegrate into school.
42. The Council provided its Stage 2 complaint response on 22 August 2024. The Council proposed for 1:1 tutoring to start for Y for 2 hours every day in a communal setting with tutor providing weekly reports of Y’s progress. The Council said that since Y was still enrolled at school it would continue to maintain oversight of the tuition. The Council said Mrs X had a responsibility to ensure Y attended the tuition and asked her to contact the Council to arrange commissioning of tuition. The Council also agreed to arrange for the relevant team to consider a EHC Plan Needs Assessment of Y.
43. On 5 September 2024, Ms A contacted the Council to arrange a meeting to discuss tuition. The Council arranged a meeting for 10 September 2024 in which the Council agreed to start tuition at a lower level and build up to 10 hours in recognition of Y’s time out of education.
44. Y’s tuition started on 23 September 2024.
45. The Council kept Y’s tuition under review with this tutoring increasing regularly throughout the term until it reached 10 hours each week. The Council also liaised with Y’s tutor and the school about reintegration plans for Y with the parties agreeing that tutoring should continue for now.

Analysis

Provision of education

46. It is not the role of the Ombudsman to investigate the actions of a school. I cannot find the Council at fault for failing to provide education for Y before it was made aware that Y was not attending school. As such, I cannot find the Council at fault for Y’s lost education from September 2023 to 16 November 2023.
47. The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness or ‘otherwise’, the Council must consider intervention to make such arrangements itself. The duty arises after a child has missed fifteen days of education either consecutively or cumulatively.
48. When the Council received the Early Help Assessment form on 16 November 2023, it was evident to the Council that Y had been absent from school for more than 15 days.
49. The Council accepted on 21 November 2023 Y needed some input from the Council and liaised with Y’s school about Y’s education. The Council decided that Y could access education in school with support through transport to school and a phased return. The Council arranged to review the success of this support during a meeting on 15 January 2024.
50. The primary function of the Council’s Section 19 duty is to provide alternative provision of education for a child who is missing school. However, a council can fulfil its Section 19 duty by considering the situation and deciding that a child’s education is best suited to a school setting. The Council can fulfil this by making plans to help reintegrate a child into school if the Council’s decides that education is accessible and available at the school.
51. I cannot find the Council at fault for its decision in November 2023 that Y’s school was accessible and available educational provision for Y. The Council considered Y’s individual situation, liaised with Y’s school, drew up a plan to reintegrate Y into school and set a date to review this plan. This was ultimately a decision the Council was entitled to make which the Ombudsman cannot question.
52. During the January 2024 meeting, the Council decided there were no barriers for Y attending school and the support through part-time timetable and transport was still on offer. However, the Council noted in the early help plan that it would “enquire about alternative provision”. By deciding there was a need to enquire about alternative provision of education for Y, the Council has effectively decided it has doubts about the suitability and accessibility of the school, at least in the short term. On making this decision, the Council a duty to make more formal education available to Y. The Council did not follow up on this action; this was fault.
53. When the Council reviewed Y’s situation on 21 March 2024 it decided that Y’s school should provide education for Y through online learning with the view to reintegrating Y into the school setting.
54. The Council was entitled to decide the best course of action to support Y back into school was through a six-week period of online learning. This is a decision the Council made following consultation with Y, Mrs X and the school. The Council created a suitable plan and put this into place from 15 April 2024. I cannot find fault with this decision making.
55. However, the Council failed to keep Y’s access to online learning under review and delegated the full provision of this online learning to Y’s school. A council cannot delegate the entire Section 19 duty to provide alternative provision of education to a school. At the least, a council must keep such provision and reintegration plans under review, even if the school is making the arrangements on its behalf.
56. I do not find fault with the Council for the time period 15 April 2024 to 24 May in arranging what it considered suitable provision for Y. This was the initial six-week time period planned for the online learning to support Y’s reintegration to school. However, I do find fault with the Council from 27 May 2024 to 3 July 2024 as the Council failed to keep Y’s education under suitable review.
57. Ms A complained to the Council on 2 July 2024 the online learning was not suitable education for Y. During the 3 July 2024 meeting, the Council provided no rationale for why it considered the online learning was suitable for Y but still extended this to the end of the year. The Council also confirmed in its Stage 1 complaint response it did not consider the online learning was suitable provision for Y.
58. Despite reviewing Y’s situation on 3 July 2024, the Council failed to put in place suitable provision for Y. The Council later acknowledged in the Stage 1 complaint response that it needed to find suitable provision for Y. The fault in failing to provide suitable provision for Y extended to the end of the academic year.
59. When the Council issued the Stage 2 complaint response it decided to provide 1:1 tuition for Y. The Council invited Mrs X to discuss this provision with them so it could arrange suitable provision. Ms A arranged a meeting with the Council for 10 September 2024. The delay in arranging this meeting was not through the fault of the Council.
60. The Council arranged for tuition to begin from 23 September 2024. This provision was agreed to start at less than 10 hours each week with Mrs X because of Y’s long absence from education. The Council arranged for this provision to increase of several weeks and kept tabs on this provision. While Y did not receive a full-time education, Y was receiving a package of education they could access based on their individual circumstances. I do not find fault with the Council’s alternative provision of education for Y since September 2024.
61. I have found fault with the Council failing to fulfil its Section 19 duty from 15 January 2024 to 15 April 2024 and from 27 May 2024 the end of the 2023/2024 academic year.
62. Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision put in place, a child’s individual needs and whether they are in a key academic year.
63. I have considered Y’s individual circumstances and our guidance on remedies. It is notable that from 15 January 2024 to 15 April 2024, Y missed one week short for a full term of education without any education input.
64. While the Council failed to meet its duty from 27 May 2024 to keep Y’s access to education under review, Y was able to access some education during this time through the online learning provided by Y’s school. The fault by the Council is failing to ensure this education was suitable for Y’s needs and failing to keep this under review. This resulted in Y failing to suitability engage in education on offer.
65. Having considered the full situation, I consider the Council should provide a payment of £2,300 for its failure to provide suitable education for Y during the periods it was at fault for failing to fulfil its Section 19 duty.

EHC Plan Needs Assessment

66. Y’s representative requested an EHC Plan Needs Assessment from the Council on 2 July 2024. While there was previous talk about an EHC Plan Needs Assessment, there was no formal request before this date.
67. The Council had six weeks from the date of this request to decide whether to complete an EHC Plan Needs Assessment for Y. This meant the Council had until 13 August 2023 to make this decision.
68. In the Council’s Stage 2 complaint response it said it would pass the request for an EHC Plan Needs Assessment to the relevant team to consider but failed to do so. This means the Council failed to consider whether Y needed an EHC Plan Needs Assessment by the end of 2024. This was fault.
69. This fault meant the Council delayed outside the statutory timescales by four and a half months by the end point of my investigation. This delay has caused a missed opportunity for Y and inconvenience and frustration for Mrs X. The Council should apologise to Mrs X and pay her £250 for the injustice caused by this fault.
70. The Council has advised it has an “action/recovery plan” in place for Y. This falls short of detailing any consideration about an EHC Plan Needs Assessment for Y. The Council should ensure it starts the statutory process for considering an EHC Plan Needs Assessment.

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Action

71. Within one month of the Ombudsman’s final decision the Council should:
• Make a payment of £2,300 to Y to address their missed education while they were absent from school and the Council failed to suitably consider and act on its Section 19 duty.
• Provide an apology to Mrs X and a payment of £250 for the lost opportunity, inconvenience and frustration caused by the four and a half months delay outside the statutory timescales in considering the need for an EHC Plan Needs Assessment.
• Provide a formal decision letter to Mrs X about whether it will complete an EHC Plan Needs Assessment for her child.
72. The Council should provide us with evidence it has complied with the above actions.

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Decision

73. There was fault leading to injustice. As the Council accepted my recommendations, I have completed my investigation as I consider that a suitable remedy.

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Investigator's decision on behalf of the Ombudsman